What is Child Abduction (Penal Code § 278)?
It is not uncommon during acrimonious divorces and child custody proceedings to hear one parent claim the other parent has “abducted our child.” The parent missing the child calls the police, not only hoping to receive assistance in the return of the child, but to also gain an advantage in the pending child custody proceedings. Sometimes, consequently, there are ulterior motives behind the police report and therefore, false accusations often are present.
When both parents have the right of custody over the child, neither parent can violate Penal Code § 278. To be convicted of violating California’s law against child abduction, one must have no right to custody of the child and “maliciously take, entice away, keep, withhold or conceal any child with the intent to detain or conceal that child from a lawful custodian.” One has the right to custody if that person is the parent of the child and not had his or her rights restricted or revoked by a court, or one has the right to custody through at court order.
A few definitions are helpful to understanding this charge better. A “child” is defined as a person under the age of eighteen. “Maliciously” refers to the intent level, which is to vex, annoy or injure. “Keeps” or “withholds” means physical retention of the child, whether or not the child resists or objects, as often the child is too young to even understand what is going on. “To entice” means to lure or attract or lead astray by trick or exciting the child. “Detain” means to delay, slow down, hinder and does not require force or threats.
Penal Code § 278 is a “wobbler,” meaning it can be charged as a felony or a misdemeanor, depending on the defendant’s criminal history and the nature of the conduct at issue. When there is a misdemeanor violation, the maximum punishment is one year in county jail and a $1,000 fine. If the violation is of 278 charged as a felony, the maximum punishment is four years in state prison and a $10,000 fine. At each level of conviction, the defendant will be ordered to pay restitution to the victim and/or the law enforcement agency for their costs in locating and returning the child. Penal Code § 278.6.
Such penalties are applicable before any enhancements are applied to the sentence. Such enhancements can include an extra year if one uses a gun in the commission of the offense, doubling of the sentence if one has a prior strike offense under California’s Three Strikes Law, or ten years if the crime was committed for the benefit of a criminal street gang.
Child abduction is similar to, but distinguishable from kidnapping (Penal Code § 207 or Penal Code § 209). Child abduction is a crime against the parent, whereas kidnapping is crime against the victim, who does not necessarily have to be a kid at all. Arguably, kidnapping can also be charged against a parent who has legal custody of a child if the parent if he or she is exercising parental rights for an illegal purpose (State v. Tuitashi (1986) 46 Wash.App. 206, 729 P.2d 75, 77). Kidnapping also requires “asportation,” meaning movement of the child, whereas child abduction has no such requirement.
Child abduction is often charged in conjunction with other charges. These can include contributing to the delinquency of a minor (Penal Code § 272), carjacking (Penal Code § 215), false imprisonment (Penal Code § 236) and deprivation of custody (Penal Code § 278.5). Section 278.5 is distinguishable from child abduction, which involves someone who has no right to custody of the child, in that deprivation of custody can involve someone who does have the right to custody over the child. Section 278.5 usually involves a parent who interferes with another parent’s right to visitation. Section 278.5 is also a “wobbler.”
The defenses to being charged with child abduction are fairly straightforward. First, one may simply have the right to custody of the child because the defendant is the lawful custodian of the child. Second, the “victim,” the person who was deprived custody of the child or who defendant took the child from was simply not the lawful custodian of the child. Third, one can defend oneself by showing that the conduct was not malicious at all. This could apply if someone took the child from his or her parent to prevent harm to the child from his or her custodian, which does not require physical harm, but can include severe emotional abuse.