California Penal Code 278.5 PC | Deprivation of Child Custody or Visitation

This charge primarily occurs in the context of parents disputing over the custody of their child. There is a strong possibility that the accuser is exaggerating the circumstance to justify one’s arrest to gain fully custody of the child. Since this is a crime involving a child, law enforcement and prosecutors take this extremely seriously often requiring mandatory jail time resulting loss of visitation or custody rights of the child. Furthermore, the court may impose a protective order prohibiting a parent from all contact and communication with a child for three years.

PC 278.5(a): Child Abduction Defined by Statute

In California, Penal Code 278.5(a) governs the child abduction statute which 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 under this statute.”

Elements of the Crime

In order for someone to be found guilty under this statute, the prosecutor must prove beyond a reasonable doubt:

  1. Defendant took, withheld, or concealed a child
  2. The child was a minor
  3. Defendant acted maliciously depriving lawful visitation or custody

Examples

Bob and Sally are divorced and have one child. The family law court orders each parent is entitled to custody on a weekly basis (two weeks out of the months). When Bob comes to Sally’s home to pick up his child, Sally refuses to allow Bob any visitation or any right to see his child.

Dan is upset the court ruled against his desires of having custody of his child so sold his house and moved out of the country with his child. His ex-wife was upset because Dan has taken their child when the court ordered her to have full custody.

What is the Punishment for Child Abduction in California?

Child abduction is a “wobbler” offense which means the prosecutor holds discretion to charge someone with a felony or misdemeanor. In making this determination, a prosecutor typically considers your prior criminal record or the severity of the current offense. Fortunately however, if you were convicted of a felony, you may be eligible to reduce your felony to a misdemeanor after successful completion of your sentence with no violations.

If convicted of a misdemeanor, the consequences are:

  • Up to one year of incarceration in the county jail
  • Court Ordered Probation
  • Court ordered counseling classes
  • Up to $1,000 in fines
  • Protective or Stay Order is Imposed
  • Loss of Visitation or Custody rights
  • Immigration Consequences

If convicted of a felony, the consequences are:

  • 16 months, 2, or 3 years in state prison
  • Formal Supervised Probation or Parole
  • Court Ordered Counseling Classes
  • Up to $10,000 in fines
  • Loss of Visitation or Custody Rights
  • Loss of Firearm Rights
  • Immigration Consequences

What are the Legal Defenses to Child Abduction in California?

  1. You were falsely accused of this crime. Unfortunately, there could be times an ex-spouse attempts to seek revenge by making false accusations in order to gain fully custody of a child or for some other benefit.
  2. You had full right to custody or visitation at the time. If you have legally entitled to custody at the time, you are not guilty of this offense.
  3. You were acting in the defense of the child or protecting the child from harm.
  4. Your conduct is not considered “malicious” but merely an accident or a mistaken belief.

Pertinent Evidence for your Defense

  • Text messages, facebook messages, email exchanges from the accuser.
  • Audio or Video recording of the incident
  • Statements from witnesses or family members
  • Court documents outlining the terms of the family law judges orders
  • Impeachment evidence of the accuser – i.e., criminal history, mental illnesses, drug usage, etc.

Free Los Angeles Child Abduction Attorney Consultation

If you have been arrested, charged, or accused of committing child abduction, contact Los Angeles Child Abduction Lawyer John Rogers at the Law Offices of John D. Rogers for a free consultation of your rights and defenses. Mr. Rogers is located at 1801 Century Park East, 24th Floor, Los Angeles, CA 90067. Call 877-888-9820 now for a free confidential consultation concerning your rights and defenses.