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Child Abduction: Law & Defense
PC 278 & PC 278.5 Crimes

Information on the crime of child abduction is found at California penal code sections 278 & 278.5(a)).

PC 278 & 278.5(a) Laws

 

PC 278:  Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian is guilty of child abduction (Abbreviated).

Child abduction charges often stem from defendant's violation of a family law court order for visitation (parenting time) after the defendant, who is without legal custody rights to his or her child, does not return his or her child to the custodial parent after court ordered visitation is scheduled to end.

Note: Child abduction and kidnapping are similar crimes. The crime of child abduction is charged where there is some relationship between the child and the defendant, such as parent to child, grandparent to grandchild, etc. When there is no relationship between a child and the person who takes or hides a child away from a custodial parent the crime is kidnapping. For more information, see Differences Between Child Abduction and Kidnapping. 

Note: The crime of child abduction is often charged along with the crime of contempt of court or violation of a restraining order because the non-custodial parent who abducts his or her child or stepchild is usually also in violation of some type of court order. For more information, see Contempt of Court & Violation of a Restraining Order.

PC 278.5(a): Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

  • (b) Nothing contained in this section limits the court’s contempt power.

  • (c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.

PC 278 Punishment

PC 278 & PC 278.5(a) are both charged as a felony or as a misdemeanor crime.

(wobbler). Felony child abduction, charged as PC278-F, carries a maximum jail sentence of four years. Misdemeanor child abduction, charged as PC 278-M, carries a maximum jail sentence of one year.

Note: In some cases, it might be possible to reduce a felony child abduction charge to a misdemeanor child abduction charge depending on the facts of the case and the defendant's criminal history.

Probation Sentence: A probation sentence is period of supervision instead of actual jail. Probation sentences are allowed in PC 278 cases, but not guaranteed. Whether or not a probation sentence will be granted upon a conviction for a violation of PC 278 depends largely on the facts of the case and the defendant's criminal history. Probation sentences can include actual jail, but any jail sentenced ordered as part of a probation sentence may usually be served alternatively on work release or house arrest.

PC 1170(h) Sentence: If the defendant is sentenced to jail for PC 278, that jail sentence would be served in a local county jail (as opposed to a state prison). In addition, the court could allow the defendant to serve part of his or her jail sentence in custody and part of it out of custody (split sentence), or the court may allow any jail sentence to be suspended (not served unless the defendant violates his or her conditions release.

In addition to any possible incarceration, if found guilty of child abduction (PC 278), the defendant could also face the following punishments: monetary fines and penalties, denial or entry into the military, loss of the right tot adopt a child, loss of parenting time with the victim, loss of the right to own a firearm, restitution, criminal protective orders, domestic violence restraining order (DVRO in family law court), immigration and professional licensing consequences, loss of driving privileges (if abduction involved a vehicle), and more.

Bail Issues: In San Bernardio County, the bail amount for felony child abduction allegations is $50,000, and for misdemeanor child abduction it is $5,000. It is possible for the defendant to be released from jail on his or her own recognizance (without the need for bail) while awaiting a court disposition on a PC 278 charge, but whether or not the court is willing to release a defendant on his or her own recognizance (O.R.) depends largely on the defendant's criminal history.

PC 278 & 278.5 Special Sentencing Factors

PC 278.6(a): At the sentencing hearing following a conviction for a violation of Section 278 or 278.5, or both, the court shall consider any relevant factors and circumstances in aggravation, including, but not limited to, all of the following:

  • The child was exposed to a substantial risk of physical injury or illness.

  • The defendant inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child at the time of or during the abduction.

  • The defendant harmed or abandoned the child during the abduction.

  • The child was taken, enticed away, kept, withheld, or concealed outside the United States.

  • The child has not been returned to the lawful custodian.

  • The defendant previously abducted or threatened to abduct the child.

  • The defendant substantially altered the appearance or the name of the child.

  • The defendant denied the child appropriate education during the abduction.

  • The length of the abduction.

  • The age of the child.

PC 278.6(b): At the sentencing hearing following a conviction for a violation of Section 278 or 278.5, or both, the court shall consider any relevant factors and circumstances in mitigation, including, but not limited to, both of the following:

  • The defendant returned the child unharmed and prior to arrest or issuance of a warrant for arrest, whichever is first.

  • The defendant provided information and assistance leading to the child’s safe return.

Defense to Child Abduction

The most common defenses to PC 28 allegations include mistake of fact (the defendant was mistaken as to the court ordered parenting time schedule) or defense of others (the defendant was protecting the child from an objective danger to the child if he or she were to return the child to the custodial parent.

More on Defense of Others

 

Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. (PC 278.7(a))

Also, section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child.

 

“Emotional harm” includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child (PC 278.7(b))

For this special defense to apply to child abduction cases, the defendant shall do all of the following:

 

  • Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed.

  • Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act.

  • Inform the district attorney’s office of any change of address or telephone number of the person and the child.

  • For the purposes of this article, a reasonable time within which to make a report to the district attorney’s office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney’s office or commencing a custody proceeding earlier than those specified times.

  • The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child.

Note: For a defense of others defense to be reasonable the non-custodial parent (defendant) should probably have contacted the police for an emergency protective order (CPO), and thereafter, file for an ex parte emergency hearing in the family law court for a domestic violence restraining order (DVRO), as opposed to just taking, or keeping, a non-custodial child, without any legal justification.

Other defenses to child abduction charges include consent to take the child, lack of intent (forgot the parenting time schedule or made good faith efforts to return the child but could not because of a factor outside of the defendant's wrongdoing), jury nullification, and more. 

If you have been arrested or charged with child abduction, or PC 278, contact out criminal defense lawyers today for a free consultation. Our law firm has full-time family law and criminal defense lawyers available to answer all of your family law and criminal defense questions.Thank you.

 

909-913-3138

Quick Reference​ Sheet

Crime: Child Abduction by Person without Custody

Code: PC 278 (CalCrim No. 1250 & 1251)

Wobbler: Yes. PC 278 is a wobbler crime. This means that PC 278 may be charged as a felony or as a misdemeanor.

Incarceration:Felony PC 278 jail sentence range: 2, 3 or 4 years (if probation not granted). Misdemeanor jail sentence up to 1 year.

Probation: Probation is allowed in PC 278 cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.​

Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.

PC 1170(h)): Yes. PC 278 is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:

  • Split (half in-custody / half out-of-custody)

  • Suspended (possibly never served)

  • Served in county jail (not state prison)

  • Note: Limitations may apply

Strike: PC 278 is not a strike offense listed in California's Three Strikes law.

Credits: 50% good conduct credits available.

​​

Firearms: Felony PC 278 convictions prohibit defendant from owning or possessing a firearm.

Bail: $50,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)

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Child Abduction Laws

PC 278: Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

PC 278.5(a): Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

(b) Nothing contained in this section limits the court’s contempt power.

(c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.

 

PC 278.7(a): Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child.

(b) Section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. “Emotional harm” includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child.

(c) The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following:

(1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed.

(2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act (Section 1738A, Title 28, United States Code) or the Uniform Child Custody Jurisdiction Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code).

(3) Inform the district attorney’s office of any change of address or telephone number of the person and the child.

(d) For the purposes of this article, a reasonable time within which to make a report to the district attorney’s office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney’s office or commencing a custody proceeding earlier than those specified times.

(e) The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child.