Posted on January 6, 2016
“Child Abduction” Defenses & Punishment │ California PC 278.5(a)
In California, Depriving of Child Custody or Visitation is also known as “child abduction” and it’s charged by the prosecution under Penal Code 278.5(a). Although similar, this charge differs from kidnapping since it does not require the use of force or fear. In most instances, simply taking your child to live with your parents in another state, depriving another of lawful visitation, may suffice to warrant this charge. Normally, this charge involves the taking of a child from law visitation or custody from your ex-spouse or lover, or it may also involve depriving child protective services from removing the child from your custody.
In any criminal investigation involving a child, law enforcement will attempt to contact you to get “your side of the story.” It’s in your best interest not to speak with police since you’re liable to make an incriminating statement and thus assist the government in building a stronger cases against you. If a police officer or detective attempts to question you, politely say no, and contact a Child Abduction Lawyer right away. The following articles addresses 9 important things you should know about the charge of depriving another of lawful custody or visitation.
WHAT IS THE LEGAL DEFINITION FOR CHILD ABDUCTION PC 278.5(a)?
PC 278.5(a) provides: “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 is guilty of [child abduction].”
WHAT MUST THE PROSECUTOR PROVE?
According to CALCRIM 1251, to prove you’re guilty of child abduction under California PC 278.5(a), the government has the burden of proving each of the following elements beyond a reasonable doubt:
1. You concealed, withheld, enticed away, or took a child;
2. The child is a minor (under the age of 18);
3. You maliciously deprived another who had lawful visitation rights or custody.
WHAT ARE THE LEGAL DEFENSES TO CHILD ABDUCTION CHARGES?
• You did not act maliciously. In other words, you did not act with the intent to deprive another with a lawful custodian right to the child. Your conduct could have been an accident or lack of knowledge.
• The other person did not have lawful visitation rights to the child.
• You did not entice the child away from another.
• You had the right to legal custody or visitation at the time the alleged crime.
• You were defending the child against harm from the other person.
WHAT IS THE PUNISHMENT FOR CHILD ABDUCTION?
Child abduction is a wobbler offense which means the prosecutor holds discretion when electing to charge you with a felony or misdemeanor. The punishment for this offense will depend on whether you’re convicted of a felony or misdemeanor. A felony conviction carries 16 months, 2, or 3 year in the county jail whereas a misdemeanor conviction carries up to 1 year in county jail.
WHAT ARE EXAMPLES OF CHILD ABDUCTION?
• Persuading your child not to see their guardian who has a legal right to visitation.
• Taking your child to another state or country.
• Telling another who has a legal right to visitation that the child is away when the child is actually inside your home.
• Lying to child protective services that you don’t know where your child is when you know the child is with a family member or at a friend’s house.
In the unfortunate event you’re charged or are under investigation, it’s best to begin gathering all evidence in support of your defense as soon as possible. Your accuser may have a history of violence or conveyed threatening messages to you – this will serve as critical evidence. A list of evidence you or your lawyer should gather are:
• Text messages or social media messages or video recordings
• All court documents, rulings, orders, etc.
• Photographs of any physical injuries or injuries to the child
• Statements from friends / colleagues that your accuser is a violent person
• Evidence of your accusers previous arrests or convictions
• Evidence of your accuser’s mental instability (e.g., drugs, alcohol, etc.)
IS FELONY CHILD ABDUCTION ELIGIBLE TO BE REDUCED TO A MISDEMEANOR?
A felony conviction for child abduction under California PC 278.5(a) is eligible to be reduced to a misdemeanor upon successful completion of your probation period. To do so requires a specific petition to be filed with the court brought under PC 17(b). If the court grants your petition, the conviction will be reduced to a misdemeanor “for all purposes” relieving you from ever having to disclose that you were convicted of a felony. Factors the judge will consider when deciding to reduce your conviction are:
• Whether you suffered any probation violations
• Whether you completed all your responsibilities and orders from the court
• Your prior criminal history
• The severity of the facts and circumstances of your case
• The planning and sophistication of your crime
• Whether you’re likely to re-offend
• Whether you pose a danger to society
• The reason you’re seeking reduction – e.g., military, immigration, employment, etc.
IS CHILD ABDUCTION ELIGIBLE FOR AN EXPUNGEMENT?
If you successfully completed your probation period for this offense, then you may be eligible to expunge your record regardless of whether the conviction was for a felony or misdemeanor. Upon proper petition brought under PC 1203.4, the court will withdraw its finding of guilt, enter a not guilty plea, and dismiss the case under the California expungement statute. From that moment forward, you will be released from all penalties and disabilities stemming from your conviction. This remedy has considerable benefits in the private employment sector. If you’re seeking to expunge your record, contact the Law Offices of John D. Rogers.
CONTACT US FOR A FREE CONFIDENTIAL CONSULTATION
Contact a Child Abduction Lawyer at the Law Offices of John D. Rogers if you’re facing allegations of depriving another of lawful visitation or custody under PC 278.5(a) for a free confidential consultation concerning your rights and defenses.