It is a crime when you take or conceal a child and maliciously deprive another person of his/her right to custody or right to visit that child. In California, Penal Code (PC) Section 278.5 is the controlling law. This offense may be charged as either a misdemeanor or a felony, in the latter case subjecting you to up to three years in the state prison.
Penal Code Section 278.5 prohibits abducting a child in violation of a custody order or visitation right. You violate this law when you maliciously take, entice away, keep, withhold or conceal a child from one of the child’s lawful custodians. That is, someone who retains physical care, custody and control of the child or from someone who, at the time of your actions, had a right of visitation with the child.
Although this charge is related to Penal Code Section 278 (child abduction laws), Penal Code Section 278.5 differs in three ways.
1. PC 278.5 applies to anyone although it was implement primarily to address abduction by parents. PC 278 only applies to people who do not have a right of custody over the child.
2. PC 278.5 can be violated by interfering with another person’s right of visitation, not just their right of custody, and
3. PC 278.5 (“child detention) is a slightly less serious offense than PC 278 (“child abduction”) and as a result is only punishable by a maximum of three years in state prison instead of four years for PC 278.
Examples of PC 278.5 are upset with his wife about a pending divorce and custody battle, a father takes his daughter from her mother and moves to another state. He does not tell the mother where they are. Another example is an angry with her ex-husband a woman takes her son for a vacation when it is the father’s court approved weekend visit or the child’s father decides to keep his son past his court allotted time.
There are several defenses to this charge and the facts of both the family law case and now the criminal case must be closely scrutinized. I have represented clients at the inception of a case that involves both a criminal and family cases and have had to take over another attorney who was not familiar with how the criminal case affected the family law case or vice versa.
It is critically important to also know that PC 278.5 is a “wobbler.” A wobbler is a charge that the prosecutor may file as either a misdemeanor or a felony, depending on the facts of the case and the person’s criminal history.
In custody and visitation issues in family court, criminal cases such as allegations of domestic violence or PC 278 or PC 278.5 will have dramatic and practical affects on who gets legal and physical custody of the minor(s).
Any questions, feel free to call my office at 310-601-7144 or email me at [email protected].