Law Offices of Elliott Kanter
What is the California Crime of Abducting a Child in Violation of a Custody Order or Visitation Right?
California Penal Code 278.5 defines the crime of abducting a kid in violation of a custody order or visitation right.
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.
This law prohibits abducting a kid in violation of a custody order or visitation right. It is sometimes referred to as “child detention” and you violate this law when you maliciously take, entice away, keep, withhold or conceal a kid from one of the child’s lawful custodians. The custodian is the one 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.
How is this different from Penal Code 278 California’s Child Abduction Law?
Although they are closely related, the two codes do differ in these important ways:
PC 278.5 applies to anyone (although it was enacted primarily to address abduction by parents) and PC 278 applies only to people who do not have a right of custody over the child.
You can violate PC 278.5 by interfering with another person’s right of visitation, not just their right of custody.
“Child Detention” (PC 278.5) is a slightly less serious offense with a possible punishment of three years in state prison. A conviction of Child Abduction (PC 278) can mean you face up to four years in state prison.
What are the Legal Defenses to a Penal 278.5 PC allegation?
If any of the following are true, an experience criminal defense attorney can present the facts on your behalf:
- If the person from whom you took the kid was not entitled to custody or visitation
- You were protecting the kid
- You didn’t maliciously take the kid
- False accusations / mistaken identity
The crime of kid abduction in violation of custody or visitation rights is a serious offense in California. If you have been charged with a violation of PC 278.5, call the Law Office of Elliott N. Kanter or submit our secure online case review for a free consultation today. You don’t have fight these charges alone. We are here to help you. As an experience and skilled San Diego Criminal Defense Attorney, Mr. Kanter will carefully review your case and advise you of all your legal options and rights.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.