Penal Code 278:
The section of California law that applies to the crime of “child abduction” is Penal Code 278. According to the code, you violate this section of the code if: with malice you take a child away from his/her legal guardian when you have no right of custody over the child.
In order to have a “right of custody” over a child, you must: be the parent of the child and have not had your rights restricted or revoked by the court, or have received a court custody order.
If you are shown to be guilty of violating Penal Code 278, prosecutors may charge you with a misdemeanor or a felony, depending on the circumstances of the offense, and your criminal history.
A misdemeanor conviction gets you up to one year in a county jail and a maximum $1,000 fine.
A felony conviction can get you either (a) probation and up to one year of county jail, or (b) two, three or four years in the California state prison and a maximum $10,000 fine.
If your abduction involves violation of a custody order, the penalties are similar, except that the felony charge subjects you to 16 months or two or three years in prison instead of two, three or four years.
In addition to penalties, the defendant must pay restitution to the prosecuting agency and/or the victim for any costs reasonably incurred in locating and returning the child to the victim.
Mitigating factors, or factors that may help lighten your sentence, would include: you returned the child unharmed and prior to your arrest or prior to the issuance of a California warrant, and/or you provided information and assistance leading to the child’s safe return.
Aggravating factors, or factors that would justify a three- or four-year sentence, would include:
- Exposing a child to a substantial risk or physical injury or illness,
- Inflicting or threatening to inflict physical harm on the child/parent/lawful custodian at the time of or during the abduction,
- Taking the child outside of the country,
- Substantially altering the appearance or name of the child, or
- Failure to return the child.
- Deprivation of Custody: Penal Code 278.5 PC California’s “deprivaton of custody” law is very closely related to Penal Code 278 PC. However, Penal Code 278 targets individuals who do not have custody over the child they are accused of abducting, whereas Penal Code 278.5 also encompasses persons that do have that right.
- Kidnapping: Under Penal Code sections 207-209.5 PC, it is illegal to move another person a substantial distance without that person’s consent by using force or fear. “Force or fear” means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm. Conviction can get you up to 8 years in prision.
- Aggravated Kidnapping: Is similar to kidnapping with the following additional factors: the victim is a child under 14 years of age, you accompany the kidnapping with a demand for money (known as ransom), the victim suffers bodily harm or death, or you kidnap another person while you are violating Penal Code 215 PC California’s carjacking law. Aggravated kidnapping can get you 5 years to life, depending on the circumstances of the case.
- False imprisonment: Violation of Penal Code 236 PC California’s false imprisonment law happens when you unlawfully inhibit another person’s freedom. This offense is considered a misdemeanor and is punishable by up to three years in prison.
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.