Child Abduction Laws & Defense
In a family law context, the term “child abduction” refers to a situation where a minor child’s parent, or legal guardian, takes, keeps, or conceals a child from another person, who also has a legal right to physical custody of the child, and where the child that was taken, kept, or concealed without consent or legal justification.
Note: The person from whom the child was taken, kept, or concealed, is usually, but not always, the child’s other parent or legal guardian.
Child Abduction v. Kidnapping: The crime of child abduction (PC 278.5) is similar to the crime of kidnapping (PC 207), except that the crime of child abduction involves the abduction or concealment of a child who is closely related to the abductor. With the crime of kidnapping, the defendant and the alleged victim do not necessarily have a close family relationship with one another. Also, the crime of child abduction necessarily involves a child; whereas the crime of kidnapping can involve a child, but the crime may completed regardless of the victim's age.
Note: In the family law court, child abduction is also sometimes referred to as “parental kidnapping.”
For example, if a minor child’s father, who has court-ordered visitation rights to his child, refuses to return his child to the child’s mother after father’s visitation period is completed, and there is no legal justification for why father refused to return his child after the visitation period is completed, then the child’s father is probably committing the crime of child abduction.
This is true even if both of the child’s parents have child custody rights to the child, and even if the minor child wanted to extend the period of visitation with his father.
PC 278 v. 278.5: As stated, child abduction is a crime in California; however, there are several child abduction statutes that might apply depending on the circumstances of the case. Abduction of a child by the child’s parent is usually charged under California penal code section 278 when the abducting parent does not have legal custody rights to his or her child, but where the abductor is nevertheless the biological parent of the child (i.e. paternity not established or child’s parent lost his or her custody rights after a legal process).
On the other hand, when a child’s parent has physical custody rights to his or her child, but the child’s parent has not returned his or her child to the child’s other legal parent or legal guardian after a scheduled visit his or her child, and where there is no legal justification for the child’s parent to not return his or her child after a scheduled visit, then the crime, if any, is usually charged under California penal code section PC 278.5 (Child abduction after child custody and/or child visitation orders are established).
Also, a parent who is charged with PC 278.5 may also be charged with contempt of court (disobedience of a court order) because PC 278.5 implies that a court order regarding child custody and/or child visitation was in order at the time of the child’s alleged abduction by his or her parent.
Married Biological Parents & Child Abduction: If a child’s biological parents are married, but no court orders are in place regarding child custody and/or child visitation, then both parents usually have an equal right to take and keep their child individually and/or jointly. This is true even if both of the child’s parents do not agree to the taking or keeping of their child (assuming the taking or keeping of a child is not otherwise proscribed by law [i.e. child abuse, child neglect, and/or child endangerment conduct, etc.].
Of course, when one custodial parent takes a child without the implied or express permission of the child’s other custodial parent then either custodial parent may file a request for order (RFO) to establish child custody and/or child visitation rights. The court may thereafter order the child be returned to the non-offending parent. Whether or not the court orders a return of the child from the person who took, kept, or concealed the child from the child’s other custodial parent depends on several factors, including the reason(s) that the child’s custodial parent took, kept, or concealed his or her custodial child from the child’s other custodial parent in the first place.
Note: For emergency situations, such as where a custodial parent is likely to take a child from the other parent and keep him or her in another country, the aggrieved parent may file an emergency ex parte petition to establish child custody and/or child visitation rights to the child in order to attempt to protect the child from leaving the country.
Also, other legal proceedings may be filed concurrently with the emergency ex parte hearing request, such as domestic violence restraining orders (DVRO), paternity suits (parentage action for alleged fathers to establish legal parentage), legal separation, divorce, and more. Keep in mind that when there are no court orders established regarding child custody and/or child visitation, then a child’s legal parent is not referred to as a child abductor when he or she takes his child; it is the violation of a court order, usually established in family law court, that may lead to a child abduction allegation.
Non-Married Biological Parents & Child Abduction: When the biological parents of a child were never married, the father will need to establish his parentage to the child before he can enjoy custodial rights to the child.
If a father without custody rights takes or keeps his biological child without good reason for doing so he may be charged with child abduction under PC 278. The child’s father may defend on the ground that he is protecting his child if he reasonably believes his child is being emotionally or physically abused by the person from whom he took his child (usually the child’s mother), so long as he contacts the local district attorney within ten (10) days of his taking or keeping his child and immediately commences a paternity action and a domestic violence restraining order (DVRO) to protect the child that he believes to be his (biologically or otherwise).
Divorced Parents & Child Abduction: Parent who are divorced (or legally separated) should have child custody orders established in conjunction with the divorce or legal separation. The child custody court orders must be followed in order to avoid a child abduction allegation and/or a contempt of court allegation.
Note: There is a difference between physical child custody and legal child custody. Physical child custody refers to which parent has the right to physically have a child during a particular time. Physical custody may be joint or sole. Joint physical custody means that the parents share physical custody of their child and sometime one parent may have primary physical custody, which simply means that the child mostly lives with one parent more than the other. Sole physical custody means that the child is exclusively with one parent and the other parent may, or may not, have some visitation of the child (supervised visitation is common in sole physical custody situations). Legal child custody refers to the right to make important legal decisions for a child, such as education, medical treatment, extra-curricular activities, etc. Parents may share joint legal custody or one parent may have sole legal custody of the child. Child abduction in family law has to do with interfering with a person's custody rights.
Important: A parent whose parental rights have been terminated in a juvenile dependency action or stepparent adoption action do not ordinarily have legal authority to take or keep his or her biological child. There is a very limited situation where legal authority to keep a child may apply even where the person who is keeping the minor child has had his or her legal rights terminated. This can occur where child visitation is granted to a person whose parental rights were terminated after a stepparent adoption and that person has a legal justification for not returning the child after a court-authorized visit.
Also, a father who has not established his paternity to a child, or who has had his parental rights terminated in a juvenile dependency action or stepparent adoption action, and who nevertheless takes, keeps, or conceals his minor child after the expiration of an authorized legal visit with his child, may be charged with PC 278 (child abduction by a parent without physical legal custody rights establish).
In order for the father’s defense of child abduction in the situation described immediately above, the father will need to show that he immediately contacted police or child protective services (CPS) to report the reason(s) that he took, kept, or concealed his child.
Punishment for Child Abduction
The crime of child abduction, if proved by a prosecutor beyond a reasonable doubt in criminal court, can lead to severe consequences for the defendant, including jail or prison time, loss of child custody or loss parenting time rights (child visitation), loss of a professional license, loss of immigration status, and more.
It is very important to contact a family law attorney familiar with criminal defense, or vice versa, without delay if you are charged with child abduction under either PC 278, or PC 278.5.
Also, the allegation of child abduction, if proved by a preponderance of the evidence in family law court, can lead to loss of child custody rights, loss of child visitation rights, loss of child support, and more. Remember, child abduction may also be charged as contempt of court in either family law or criminal law court.
Defense to Child Abduction (PC 278.5)
A custodial parent may have a right to keep his or her child beyond the court-ordered physical child custody time-share (child visitation) if the parent who is alleged to have committed child abduction acted reasonably to protect the child from imminent and severe emotional or physical abuse by the child’s other parent.
When a parent takes, keeps, or conceals his or her custodial child from the child’s other parent, the offending custodial parent only has ten (10) days to report the reason(s) for keeping the child to the local district attorney and only thirty (30) days in which to file a modification of child custody and/or child visitation; otherwise, the parent who keeps the child from the other custodial parent may be charged with child abduction under PC 278.5.
Note: 10 days is the maximum amount of time in which a person is allowed to contact law enforcement after keeping or concealing a child from the child's other custodial parent. However, there are situations where that maximum amount of time may be reduced (i.e. child abductor has not given a reason to the other parent of why he or she has kept or concealed the child, parent has stated that he or she does not intend to return the child even with court order to do so, no reasonable justification for waiting the full 10 days to report, and more. It is important that a person contact a lawyer immediately if he or she intends to keep or conceal a child, even for the child's own protection, beyond a custodial parent's permission or beyond his or her authority to do so per a court's order.
When a person who is alleged to have committed child abduction defends on the grounds that he or she acted reasonably in protecting his or her child, than parent or legal guardian should consider filing a domestic violence restraining order (DVRO) to protect the child without delay. In fact, not filing a DVRO in some situations can lead to an accusation that a parent failed to take reasonable and immediate steps to protect his or her child.
Other defenses to child abduction may apply in either family law or criminal court, including a reasonable mistake of fact as to the child custody or visitation schedule, consent by the other parent to keep the child beyond the visitation period, inability to return the child to his or her other custodial parent because a third party, such as a child’s legal guardian or a juvenile dependency court, has the minor child, and more.
Note: It is not a defense to prove that a minor child consented to be with the parent who is alleged to have committed child abduction. On the other hand, minor children who are of sufficient age cannot be physically forced to return to his or her other custodial parent after a visitation. In this situation, the other custodial parent should be contacted immediately to report the child's non-compliance with returning to the other parent (unless there is restraining order in place that does not allow the person to contact the other custodial parent).
For a parent whose child has been abducted by a joint custodial parent, the victimized parent should contact the police without delay to report the child abduction. Thereafter, the victimized parent should immediately consult with a family law attorney familiar with criminal defense law and procedure, or vice versa, as it is likely that the child’s parent who is accused of child abduction will defend his or her actions on grounds that the child’s other parent is abusive and/or negligent towards the child.
Note: False accusation of child abuse and/or child neglect are rampant in family law court. It is important to retain an attorney with both family law and criminal defense experience. This is because criminal allegations are likely to be alleged by both parties in any alleged child abduction case.
Keep in mind that child abduction claims that arise during litigation on other family law matters will have a major impact on every type of family law legal issue, including: child custody rights, paternity rights, mediation, child visitation rights parenting time, domestic violence restraining order (DVO) issues, child support, contempt of court, attorney fees, spousal support, and more.
To learn more about child abduction, or PC 278 and PC 278.5 in the context of a family law case contact our divorce and child custody attorneys for a free consultation. Our family law firm handles all legal matters related to family law court, including, divorce, domestic violence restraining orders (DVRO), legal separation, child abduction defense, CPS defense, father’s rights, and more. Call today.
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Selected Legal References for
California Child Abduction Law
Penal Code 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.
Penal Code 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.
Penal Code 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:
(1) The child was exposed to a substantial risk of physical injury or illness.
(2) 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.
(3) The defendant harmed or abandoned the child during the abduction.
(4) The child was taken, enticed away, kept, withheld, or concealed outside the United States.
(5) The child has not been returned to the lawful custodian.
(6) The defendant previously abducted or threatened to abduct the child.
(7) The defendant substantially altered the appearance or the name of the child.
(8) The defendant denied the child appropriate education during the abduction.
(9) The length of the abduction.
(10) The age of the child.
(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:
(1) The defendant returned the child unharmed and prior to arrest or issuance of a warrant for arrest, whichever is first.
(2) The defendant provided information and assistance leading to the child’s safe return.
(c) In addition to any other penalties provided for a violation of Section 278 or 278.5, a court shall order the defendant to pay restitution to the district attorney for any costs incurred in locating and returning the child as provided in Section 3134 of the Family Code, and to the victim for those expenses and costs reasonably incurred by, or on behalf of, the victim in locating and recovering the child. An award made pursuant to this section shall constitute a final judgment and shall be enforceable as such.
Penal Code 278.7(a) [Abbrev.]: 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.
Note: Section 278.5 is abbreviated here for brevity. If you are are accused of child abduction, contact a lawyer without delay.