Last Updated on September 19, 2024
Thanks to Amber Alerts and around-the-clock news networks, it sometimes feels like kids are abducted daily. Movies and TV shows would have you believe that these children are all captured by child molesters and criminals looking for hostages, but the reality is that 90% of abducted children are actually taken by a parent. Because child abduction cases are so emotional, anyone facing this type of kidnapping charge in San Diego should contact a lawyer immediately, whether or not they have parental rights or custody.
Kidnapping Vs. Child Abduction
Most people think that kidnapping and child abduction are the same, but while they overlap in some cases, the crimes are defined differently under California law. Kidnapping involves the transportation of someone against their will through the use of force or fear or, if they were under 14, the use of fraud. While most kidnappings involving children also involve child abductions, not all child abductions are kidnappings. In most child abductions, because the child is taken by someone they know, the child comes willingly, meaning there is no use of force, fear, or fraud.
Two Types of Child Abductions: 278 and 278.5 (PC)
The law defines two types of child abduction. The first, covered by California Penal Code 278 (PC), is known as “child abduction without custodial right.” This offense occurs when a child is taken by someone who does not have custody or visitation rights, including a relative, friend, stranger, or parent without legal visitation or custody. Terms specific to this code, such as “lawful custodian,” “right to custody,” and “visitation,” are fully defined under Penal Code 277 (PC) to ensure there is minimal gray area when it comes to which charge to apply.
The second type, defined under Penal Code 278.5 (PC), is known as “deprivation of custody,” but it is also sometimes called “child abduction with custodial right” or “parental kidnapping.” This charge applies when someone with custody or visitation rights maliciously takes, withholds, or conceals a child from another person with legal custody or visitation rights. While this offense usually is done by a parent, it can also be committed by anyone with court-ordered visitation or custody, including grandparents, other relatives, legal guardians, or foster parents. Notably, a separate count will be filed for each child taken under this law, so if a mother prevents her three children from seeing their father, she could face three charges.
Simply put, if someone takes a child they have no custody over, they have violated 278 (PC), but if someone has custody and prevents another person with custody or visitation rights from seeing the child, they have violated 278.5 (PC).
Penalties for Child Abductions in California
Both types of child abductions are wobblers, meaning they can be charged as a felony or as a misdemeanor, punishable by one year in jail. As felonies, deprivation of custody is considered a slightly less serious offense than non-custodial child abduction, as the child is at least with a parent or guardian. As a result, 278.5 (PC) has a maximum penalty of three years in state prison, whereas 278 (PC) is punishable by up to four years.
Defenses to Child Abduction Without Custody
The strongest defense is to show that you had rightful custody of the child at the time. So, for example, if a mom drops her child off at a friend’s house and the child’s father accuses the friend of kidnapping, the friend is not guilty. Alternatively, the law makes exceptions for emergencies and cases where there was no malicious intent. As an example, if you put a child in your car and rushed them to the hospital because you saw them get bitten by a rattlesnake and did not see their parents around, you cannot be found guilty. Similarly, if you found a child alone in a park and offered to walk them home, you could not be accused of abducting them as long as you were not caught doing anything else illegal and were walking in the direction of their home.
If you have been accused of abducting a child, with or without custody, criminal defense attorney Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
