1) What Is Penal Code 278?
Answer: These portion of the California Penal Code prohibits stealing a child and usually is violated if you take a child away from his/her parent or legal guardian.
2) What is required for a conviction on this offense?
Answer: The prosecutor must prove the following “elements” of the offense:
· you maliciously took, enticed away, kept, withheld or concealed a child (that is, a person under 18),
· you did not have a right of custody over the child, and
· you specifically intended to detain or conceal the child from his/her lawful custodian.10
4) What does it mean to “maliciously take”?
Answer: It means to commit an act with the intent to annoy or injure another person or intent to commit a wrongful act.
5) What does it mean to “entice, keep or withhold”?
Answer: It means to allure, attract or lead a child away by generating hope or desire in the child. Force is not required to show this. “Keeps” or “withholds” means to retain physical possession of a child, regardless of whether or not the child resists or objects.
6) What does it mean to “detain”?
Answer: It means to delay or prevent the child’s return to his/her parent or guardian. Whether you actually detain or conceal the child is irrelevant. All that is required under this law is that you intended to do so.
7) What is “right of custody”?
Answer: If you have a “right of custody”, it means you have the right of physical care, custody and control of a child because you have a court custody order, or you are the parent of the child and have not had your custody rights restricted or revoked by the court.
8) What is a “lawful custodian”?
Answer: A “lawful custodian” is a person, guardian or public agency who has a right to custody over a child. This includes a parent who retains custody of a child or any other appointed legal guardian who enjoys this same right.
9) Are there any legal defenses to Penal Code 278?
Answer: Yes, they include:
a) You had custody of the child. If you are a lawful custodian of the child in question, you are not guilty of this offense.
b) The person you took the child from was not a legal custodian. (Note: You may face charges for kidnapping depending on the exact circumstances of your offense.)
c) You did not maliciously take the child. If you can demonstrate that you did not act maliciously when you took the child, you should not be convicted of this offense. An example of this is taking the child because you believed they would face harm if left with his/her custodian. However, you must prove that you had good intentions. If you took the child in order to “annoy or injure another person, or intending to commit a wrongful act”, then you did so maliciously.
d) False accusations or mistaken identity. If you are completely innocent of the charge, that is, of course, the best defense. This may be the case if, for example, you were falsely accused or wrongfully arrested based on a situation involving mistaken identity.
e) Not enough evidence. Sometimes even though the case points to your guilt, the police or prosecutor does not have enough information to prove the case beyond a reasonable doubt. If this is the case, you should be acquitted of the offense.
Any and all advice contained herein is intended only to assist parents and families with abduction of children. Nothing suggested in this article should substitute for common sense, police direction or other professional advice.
About The National Academy for Child Abduction Prevention Associates, LLC:
Founded in 2013 by Roy M. Doppelt, Esq., the National Academy for Child Abduction and Prevention Associates, LLC is an Academy of family law attorneys advocating prevention of child abduction through public education and professional collaboration. We believe that educating the public about kidnapping and its prevention is a paramount duty of attorneys who represent family law clients.