Penal Code 278.5 PC – Deprivation of Custody – California Law

A parent can be arrested for kidnapping their own child if they deprive the other parent or guardian of their legal custody or visitation rights. Penal Code 278.5 makes it a crime to abduct or take a child in violation of a legal court custody order. This is sometimes called “child stealing” or “child abduction.”

The crime is a wobbler, meaning ti can be filed as either a misdemeanor or a felony. As a felony it carries penalties of up to 3 years in county jail or state prison. In practice however, a good criminal defense attorney can often raise legal defenses to get Penal Code 278.5 charges reduced or even dismissed.

California Penal Code 278.5 PC makes it a crime maliciously to deprive another adult of his/her lawful right to custody of, or visitation with, a child. Deprivation of custody is sometimes referred to as “child detention.”

The language of the statute reads as follows:

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.

Unlike the crime of “child abduction” set forth in Penal Code 278 PC, deprivation of custody can be committed by someone who actually has a right to visitation with, or even custody of, the child. As a result, deprivation of custody is typically charged against a parent, grandparent, foster parent or someone else who at some point has had a custodial relationship with the child.

Examples

Here are examples of people who might be charged with child abduction through deprivation of custody:

• A divorced man has joint custody of his children, which means that they spend every other week with him. When he learns that his ex-wife has a new boyfriend, he gets angry and refuses to return the kids to her at the end of his week.
• A grandmother is given temporary custody of her grandson while her daughter (the child’s mother) is serving a jail sentence for possession of heroin. When her daughter is released, the grandmother refuses to return the child to her and instead leaves the state with him.
• A woman from another country who has been the victim of domestic abuse by her husband decides to leave him; she takes their three children and moves back to her home country without telling the husband where they are going or filing for divorce.

Deprivation of custody/visitation is what is known as a wobbler. A wobbler is a crime that may be charged as either:

• A misdemeanor; or
• A felony. ^{1 2 3 4}

When it is charged as a misdemeanor, child detention by deprivation of custody is punishable by up to one (1) year in county jail, and/or a fine of up to one thousand dollars ($1,000).⁵

When it is charged as a felony, the maximum penalty becomes sixteen (16) months, two (2) years or three (3) years in jail, and/or a fine of up to ten thousand dollars ($10,000).⁶

Legal defenses

Deprivation of child custody charges usually arise from situations—divorce, custody disputes, fear for the safety of a child—that would be devastating enough without criminal charges.

If you find yourself fighting charges under Penal Code 278.5, you deserve the help of a top California criminal defense lawyer. S/he will be able to help you identify the most promising legal defenses for your case. These could include:

• The other person did not actually have the right to custody of or visitation with the child;
• You were protecting the child;
• You didn’t act maliciously; and/or
• You were falsely accused.

1. Is deprivation of custody a crime in California?

The formal legal definition of deprivation of custody or visitation under California Penal Code 278.5 is as follows:

1. You took, enticed away, kept, withheld or concealed a child;
2. The child was under the age of eighteen (18); and
3. In doing so, you maliciously deprived a lawful custodian of his/her right to custody of the child, or deprived a person of a lawful right to visitation with the child.⁷

Took, enticed away, kept, withheld or concealed a child

As a basic matter, you are only guilty of child detention under Penal Code 278.5 PC if you:

• take,
• entice away,
• keep,
• withhold or
• conceal,

the child in question.⁸

You “entice away” a child when you lure him/her to go with you by creating hope or desire.⁹

And you can be guilty of child abduction (deprivation of custody) even if the child did not resist or object—or even wanted to go with you.¹⁰

Example: Ralph and Megan are the divorced parents of Tim, who is in fourth grade. According to the custody order from the court, Tim is supposed to stay with Megan on weeknights and Ralph on weekends.

One Tuesday afternoon, Ralph shows up at Tim’s school before Megan does. He tells Tim he has tickets to a baseball game and asks if he wants to come. Tim happily goes home with Ralph.

Ralph may be guilty of child abduction through deprivation of custody even though Tim went with him willingly.

Note that you can be guilty of deprivation of custody simply for keeping or withholding a child—even if s/he was initially under your care lawfully, and even if s/he consented to staying with you.¹¹

Example: Daniel is divorced and lives in Utah. His ex-wife and two children live in California. Under the custody order that was issued after his divorce, Daniel has the right to have his children stay with him for two weeks every summer.

One summer Daniel drives to California and picks his kids up for their visit at the agreed-upon time. They all drive back to Utah together.

At the end of the two weeks, Daniel’s truck breaks, so he can’t drive the kids back to California. They stay with him in Utah. He does not let their mother know what has happened.

Daniel can be convicted under PC 278.5 for keeping his children longer than he was authorized to under the custody order (if the prosecutor can convince a jury that he acted maliciously).¹²

A child

Under California’s child detention law, a child is anyone under the age of eighteen (18).¹³ The law does not apply to young people who are 18 and older.

Example: Natalie and her ex-husband Jorge have a custody agreement under which their only child, a son named Paul, spends alternate-year Christmases with each of them. (In other words, he spends Christmas with Natalie one year, Jorge the next year, Natalie the year after that, and so forth.)

Paul goes off to college when he is 17, but he turns 18 that fall. Under the custody agreement, that year would have been Jorge’s year to have Paul with him for Christmas.

But Natalie calls Paul during final exams and says that if he will spend this Christmas at her house, she will buy him a car. Paul agrees, and she sends him a plane ticket to her city.

Natalie cannot be charged with deprivation of custody because Paul is 18 when this occurs.

Deprived a lawful custodian of his/her right to custody

You are only guilty under California Penal Code 278.5 if you either:

1. Deprive a lawful custodian of the child of his/her right to custody; or
2. Deprive another person of a legal right to visitation with the child.¹⁴

A “lawful custodian” is a person, guardian or entity that has the right to custody of the child. The “right to custody” is the right to physical care, custody and control of the child according to the law, or because of a court order.¹⁵

You can be charged with deprivation of custody if the “lawful custodian” whom you are depriving of their rights is a government or nonprofit agency (such as the California Department of Children and Family Services) rather than a parent or other individual.¹⁶

Example: Janine is being investigated for child endangerment by Child Protective Services. While the investigation is ongoing, her 10-year-old son Charlie is removed from her home and placed in an agency-run group home.

Janine misses Charlie and is worried about his safety in the group home. She makes contact with him by email and persuades him to sneak out of the home one night and meet up with her. She then takes him back to her house.

Janine may be guilty of child abduction/deprivation of custody for removing Charlie from the custody of the government agency overseeing his care.

However, you are only guilty of deprivation of custody committed against a government agency if the agency actually had physical custody of the child.¹⁷

Deprived another person of visitation rights

You also violate Penal Code 278.5 PC when you deprive someone of their right to visitation with a child—even if they don’t have custody.¹⁸

“Visitation” means the time ordered by a court granting someone access to the child.¹⁹

Example: Will pleads guilty to statutory rape for having sex with a 16-year-old. His wife Anita files for divorce as soon as she finds out about the charges.

Anita convinces the judge in their divorce case that she should have sole custody of their two daughters. But the judge does give Will visitation rights for once he is released from jail.

Under the visitation order, Will is allowed to spend time with his children at Anita’s house every Saturday afternoon.

But Anita does everything in her power to prevent Will from having these visits. Eventually she starts sending the girls to friends’ houses on Saturday afternoons and refusing to tell Will where they are.

Anita may be guilty under California Penal Code 278.5, because she concealed the children’s whereabouts in order to deprive Will of his visitation rights.

Maliciously

You are only guilty of deprivation of custody if you act maliciously. This means that you must either:

• Intentionally do a wrongful act; or
• Act with the unlawful intent to disturb, defraud, annoy, or injure someone else.²⁰

Example: Rochelle shares custody of her son Davy with her ex-husband Omar.

Rochelle is working full-time and going to school at night to get a nursing credential. She also relies on public transportation to get around.

As a result of sleep deprivation, she often forgets when she is supposed to take Davy to Omar’s house. She is also sometimes unable to get him there when there are problems with the bus or subway.

Rochelle is probably not guilty of deprivation of custody, because she is not acting maliciously when she fails to bring Davy to Omar on time.

Non-residents of California

In some cases, Penal Code 278.5 PC child detention charges can be brought against you in California even if:

1. You are not a California resident; and
2. The alleged offense did not take place in California.

This can occur if any of the following are true:

1. The child in question was a resident of, or present in, California at the time s/he was “abducted”;
2. The child is later found in California; or
3. The lawful custodian or person with a right to visitation was a resident of California when the alleged crime took place.²¹

Example: Denise lives in Louisiana with her eight-year-old son Bennett and her lesbian partner Ellen. Denise and Ellen have been together since Bennett was a toddler, and Ellen has helped to raise him.

But gay marriage is not legal in Louisiana, and Denise and Ellen have not gotten married or formalized their relationship.

After a business arrangement goes horribly wrong, Denise is arrested and convicted of federal wire fraud. Denise’s mother Tracy, who lives in California, hears about this and sues for custody of Bennett. A California judge grants it to her.

Ellen does not want to give up Bennett. She refuses to take him to Tracy’s home, and she hides him with a friend when Tracy comes to Louisiana to try to get him.

Ellen may be prosecuted in California for deprivation of custody even though she has never set foot in the state—because Tracy (the person whom she was depriving of custody) is a California resident.

2. What are the penalties for a Penal Code 278.5 PC conviction?

Child abduction through deprivation of custody under California Penal Code 278.5 is what is known as a “wobbler.” This means that the prosecutor has the discretion to charge it as either a misdemeanor or a felony.²²

The prosecutor will typically make this decision based on:

• The alleged circumstances of the offense; and
• The defendant’s criminal history.

If it is charged as a misdemeanor, deprivation of custody/child detention carries the following penalties:

• Misdemeanor (summary) probation;
• Up to one (1) year in county jail; and/or
• A fine of up to one thousand dollars ($1,000).²³

Charged as a felony, it is punishable by:

• Felony (formal) probation;
• Sixteen (16) months, two (2) years or three (3) years served in the county jail under California’s realignment program; and/or
• A fine of up to ten thousand dollars ($10,000).²⁴

In addition, if you are convicted of deprivation of custody or visitation rights, you will be required to pay restitution to the district attorney for any costs incurred in locating and returning the child, and to the “victim” for any costs s/he incurred in locating and recovering the child.²⁵

2.1. Sentencing factors

California deprivation of custody law sets forth specific factors that the judge is supposed to consider when deciding your sentence at a sentencing hearing.

Specifically, the judge is supposed to consider the following circumstances in aggravation (that is, as pointing toward a longer sentence or larger fine):

• The child was exposed to a substantial risk of physical injury or illness;
• The defendant inflicted or threatened to inflict physical harm on the child or a parent or guardian of the child at the time of the “abduction”;
• The defendant harmed or abandoned the child;
• The child was taken or withheld outside of the U.S.;
• The child has not been returned to his/her lawful custodian;
• The defendant previously abducted or threatened to abduct the child;
• The defendant substantially altered the child’s appearance or name;
• The defendant denied the child appropriate education;
• The period of abduction was relatively long; and/or
• The child was relatively young.²⁶

In contrast, the judge is supposed to consider the following factors in mitigation (that is, they may point toward lighter penalties):

• The defendant returned the child unharmed and prior to his/her arrest or the issue of an arrest warrant for him/her; and/or
• The defendant provided information and assistance leading to the child’s safe return.²⁷

2.2. Multiple counts of deprivation of custody

If you are alleged to have taken or kept more than one child at a time, you may be charged with—and punished for—multiple violations of California Penal Code 278.5 PC.²⁸

This is in contrast to crimes like California theft. If you steal several pieces of jewelry at one time from a home, you will be charged with only one count of California grand theft.

But if you deprive someone of the custody of three children at once, you may be charged with three counts of deprivation of custody.²⁹

3. How can I fight the charges?

Some of the most common effective legal defenses to the deprivation of custody charges include:

The other person did not actually have custody or visitation rights

You can only commit deprivation of custody or visitation rights against someone who actually has those rights.

But according to San Francisco criminal defense attorney Reve Bautista³⁰:

“Determining who has what rights can be surprisingly difficult, particularly in cases involving ongoing divorce suits or custody battles. It is very common for a ‘victim’ who appears sympathetic to convince police that she or he has been the victim of deprivation of custody or visitation—when in reality his or her rights are far from clear or settled.”

The best kind of criminal defense attorney in deprivation of child custody cases is one who understands family law well enough to sort through the legal documents involved—and determine whether there is in fact any basis for the charges.

You were protecting the child

California law provides a “safe haven” against a child detention conviction for people who take or keep a child because of a good faith and reasonable belief that, if left with someone else, the child will suffer either:

1. Immediate bodily injury; or
2. Immediate emotional harm.³¹

When the defendant is someone who has been a victim of domestic violence, “emotional harm” can include having a parent who has committed domestic violence (such as spousal battery) against the other parent.³²

However, for this legal defense to apply, all of the following requirements must be met:

1. The defendant must be someone with a right to custody of the child;
2. Within a reasonable time (10 days or less) after committing a potential act of deprivation of custody, the defendant must make a report to the DA of the county where the child resided before the action, which must contain the defendant’s name, the current address and phone number of him/her and the child, and the reasons s/he took or kept the child;
3. Within a reasonable time (30 days or less) after committing a potential act of deprivation of custody, the defendant must file a custody proceeding in court; AND
4. The defendant must keep the DA’s office informed of any change in his/her or the child’s address or phone number.³³

If you are keeping a child away from someone with custody or visitation rights out of concern for the child’s safety, you should contact a knowledgeable attorney immediately to make sure that you fulfill the requirements for this safe haven.

If you meet these requirements, you will not be guilty of deprivation of custody.

You didn’t act maliciously

One of the key elements of the crime of child abduction through deprivation of custody is that you need to have acted “maliciously.”³⁴

What this means in practice is that you are not guilty of this crime if you acted accidentally or out of carelessness.

It is not uncommon for parents or other caregivers of a child to get confused about how a custody or visitation arrangement works. Maybe you simply forgot to bring the child to his/her other parent or custodian at the appointed time. Maybe you didn’t understand that visitation was mandatory.

You were falsely accused

False accusations are common in all sorts of criminal cases—but they are especially common in Penal Code 278.5 cases.

The reasons why are obvious. Usually, the accuser is an ex-spouse or someone else who has a close—but unhappy—personal relationship with the defendant. Falsely accusing someone of deprivation of custody or visitation is the perfect way to get revenge or to gain leverage in a divorce or custody proceeding.

The good news is that experienced criminal defense attorneys have definitely seen this kind of thing before. They can help you sort out fact from fiction and make sure the prosecutors—and, if it comes to that, the jury—find out what really happens.

4. Related Offenses

California crimes that are closely related to PC 278.5 deprivation of child custody include:

4.1. Penal Code 278 child abduction

Child abduction under Penal Code 278 PC is very similar to Penal Code 278.5 PC deprivation of custody. The only major difference is that Penal Code 278 child abduction can only be charged against people who do not have a right to custody of the child.³⁵

To give examples that illustrate the difference between child abduction and deprivation of custody:

• A divorced parent with joint custody of a child who fails to return the child to the other parent at the appointed time will be charged with Penal Code 278.5 child detention; but
• A non-custodial grandparent who picks a child up from school against the parent’s wishes and does not return him/her will be charged with Penal Code 278 child abduction.

Child abduction is a wobbler with similar penalties to the deprivation of custody. The only difference is that the potential felony sentence for child abduction is longer: two (2), three (3) or four (4) years.³⁶

4.2. California kidnapping laws

Some people might casually refer to the deprivation of custody as “kidnapping”—but in fact, California kidnapping laws cover very different behavior.

The legal definition of kidnapping is:

1. Moving another person (of any age) a substantial distance;
2. Without that person’s consent;
3. By use of force or fear.³⁷

In contrast, deprivation of custody does not need to involve force or fear—and can even take place with the child’s consent.³⁸

Kidnapping is a felony. It is punishable by three (3), five (5) or eight (8) years in California state prison —or as many as eleven (11) years in prison if the victim is a child under 14 and the defendant is not his/her biological or adoptive parent.³⁹

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