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Child Abduction Law & Defense in Family Law (PC 278.5)

In a family law context, child abduction occurs when a person, usually a parent or guardian, takes, keeps, or conceals a child from another person, usually the child’s other parent, without consent or legal justification. Child abduction is similar to kidnapping but child abduction in a family law context almost always has to do with a custodial parent who keeps a child from another custodial parent beyond the court-ordered visitation schedule and without legal justification. Child abduction in a family law context is sometimes referred to as parental kidnapping.

For example, if a parent who has court-ordered visitation rights to a child refuses to return the child to the other custodial parent after the visitation period is completed, and there is no legal reason why the parent is refusing to return the child, that parent is probably committing the crime of child abduction (some defenses may apply, see below). This is true even if both parents have child custody rights to the child and even if the child consented to extended period of visitation.

Note: Child abduction is a crime, which is usually charged under California penal code section 278 (without custodial rights, but with family relations to the abducted child), PC 278.5 (with custodial rights to the abducted child but not with a court order to have the child during the time of abduction), or as contempt of court in family court.

For child abduction under PC 278.5 to apply the parent who is alleged to have committed child abduction must have some type of child custody rights in the first place; otherwise, the crime is alleged under PC 278. Child abduction charged under PC 278.5 occurs when the custodial parent takes, keeps, or conceals his or her child in violation of the court’s order.

Married Biological Parents & Child Abduction: If a child’s biological parents are married both parents have an equal right to take and keep the child individually and/or jointly, even if both parents do not agree to the taking or keeping of their child. When one custodial parent takes a child without the permission of the other custodial parent either parent may file a request for order (RFO) to establish child custody rights and possibly have the child returned to the parent from whom the child was taken and not returned. In this scenario, a parent will usually file for a divorce or legal separation along with the request for child custody. For emergency situations, such as where a parent is likely to take a child from the other parent and keep him or her in another country, the aggrieved parent may file an emergency ex parte petition to establish child custody and/or child visitation rights to the child along with a divorce or legal separation petition and a child abduction claim.

Non-Married Biological Parents & Child Abduction: When the biological parents of a child were never married the father will need to establish his parentage before he can enjoy custodial rights. If a father without custody rights takes or keeps his biological child without good reason for doing so he may be charged with child abduction under PC 278. The father may defend on the ground that he is protecting his child if he reasonably believes his child is being emotionally or physically abused by the person from whom he took his child (usually the child’s mother), so long as he contacts the local district attorney within ten (10) days of his taking or keeping his child and immediately commences a paternity action and domestic violence restraining order to protect his child. See Father’s Rights, Paternity Suits, and Domestic Violence Restraining Order (DVRO).

Divorced Parents & Child Abduction: Parent who are divorced (or legally separated) should have child custody orders established in conjunction with the divorce or legal separation. The child custody court orders must be followed in order to avoid a child abduction allegation.

Note: There is a different between physical child custody and legal child custody. Physical child custody refers to which parent has the right to physically have a child during a particular time. Physical custody may be joint or sole. Joint physical custody means that the parents share physical custody of their child and sometime one parent may have primary physical custody, which simply means that the child mostly lives with one parent more than the other. Sole physical custody means that the child is exclusively with one parent and the other parent may, or may not, have some visitation of the child (supervised visitation is common in sole physical custody situations). Legal child custody refers to the right to make important legal decisions for a child, such as education, medical treatment, extra-curricular activities, etc. Parents may share joint legal custody or one parent may have sole legal custody of the child. Child abduction in family law has to do with interfering with a person's legal custody rights.

Important: A parent whose parental rights have been terminated in a juvenile dependency action or stepparent adoption action do not have legal authority to take or keep his or her biological child. Parents who have not established paternity, or who have had their parental rights terminated in a juvenile dependency action or stepparent adoption action, who take their biological child, may be charged with child abduction under PC 278, and they do not have the defense of protecting the child unless they have immediately contacted the police after they have taken, kept, or concealed the child.

Punishment for Child Abduction

Child abduction, if proved beyond a reasonable doubt in criminal court, can lead to severe consequences, including jail or prison time, loss of child custody or parenting time rights, loss of professional license, loss of immigration status, and more. It is very important to contact a family law attorney familiar with criminal defense without delay if you are charged with child abduction under PC 278 or PC 278.5. Child abduction, if proved by a preponderance of the evidence in family law court, can lead to loss of child custody rights, child visitation rights, loss of child support, and more. Remember, child abduction may also be charged as contempt of court in either family law or criminal law court.

Defense to Child Abduction (PC 278.5)

A custodial parent may have a right to keep his or her child beyond the court-ordered child custody time-share or visitation schedule if the parent who is otherwise alleged to have committed child abduction is reasonably taking, keeping, or concealing the child from the other custodial parent in order to protect the child from emotional or physical abuse (Physical abuse include sexual abuse).

When a parent takes, keeps, or conceals his or her custodial child from the child’s other parent he or she only has ten (10) days to report the reason(s) for keeping the child to the local district attorney and only thirty (30) days in which to file a modification of child custody and/or child visitation; otherwise, the parent who keeps the child from the other custodial parent may be charged with child abduction under PC 278.5. When the person who is alleged to have committed child abduction defends on the grounds that he or she is protecting the child than that person should file a domestic violence restraining order to protect the child without delay.

Other defenses to child abduction may apply in either family law or criminal court, including a reasonable mistake of fact as to the child custody or visitation schedule, consent by the other parent to keep the child beyond the visitation period, inability to return the child to his or her other custodial parent because a third party, such as a guardian or juvenile dependency court, has the child, and more.

Note: It is not a defense to prove that the child consented to be with the parent who is alleged to have committed child abduction.

For a parent whose child has been abducted by a joint custodial parent, the victimized parent should contact the police without delay to report the child abduction and immediately thereafter retain a family law attorney familiar with criminal defense law and procedure as it is likely that the child’s parent who is accused of child abduction will defend the child abduction claim(s) with a counter-claim of child neglect and/or child abuse as it is their only defense to a child abduction allegation.

Note: False accusation of child abuse and/or child neglect are rampant in family law court. It is important to retain an attorney with family law and criminal defense experience as criminal allegation are likely to be alleged in both directions on any child abduction case.

Child abduction claims will have a major impact on every type of family law legal issue, including: child custody rights, paternity rights, medition, child visitation rights (parenting time), domestic violence restraining order issues, child support, contempt of court, attorney fees, spousal support, and more.

To learn more about child abduction in the context of a family law case contact our divorce and child custody attorneys for a free consultation. For more information on child abduction in criminal court, including the possible jail or prison sentence (and other punishments), see PC 278. Call today!

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