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Parental Kidnapping - California Penal Code PC 278

Posted by Raoul Severo | Oct 18, 2020 | 0 Comments

They say nothing beats the love that a parent has for his or her child. In fact, sometimes it is even regarded as the most powerful thing in the world. It is important to remind your child of how special and important they are to you. In some cases, however, parents make bad decisions when trying to prove their affection towards their child. These actions include invading their child's privacy, controlling every bit of their lives, and giving them little to no freedom at all. 

When circumstances force a parent to lose custody of their child, the former side usually has to endure much of the aftermath (especially if the child is still too young). Sometimes, this sad scenario forces parents to do the unthinkable; actions that are criminal in nature. The most common example of which is in a divorce situation where one parent takes his/her child away from the other parent who has lawful custody of the child. This is an instance of parental kidnapping, a crime punishable under California Penal Code PC 278.

California Penal Code PC 278 has several main takeaways, such as:

  • It encompasses all individuals, regardless of their relationship to the child;
  • There must be an intent to take, lure, keep, withhold, or hide any child from a lawful custodian;
  • Only children under the age of 18 are protected under this law; and
  • The individual who committed the act must not have lawful custody to the child.

The aforementioned elements must be present in the act for it to be prosecuted under PC 278. For example, let's say a student reminds his teacher about her recently deceased son so much that she decided to bring him home. The parent, who has gotten worried as the student has not been home yet, calls the teacher to ask about her son's whereabouts. The teacher didn't want her student to go home yet so she lied to her parents by saying that she did not know where he was. In this case, the teacher deliberately manipulated the parent in order to keep or withhold the child inside her home. Consequently, the teacher is guilty under PC 278.

Moreover, notice that the element of consent is not included in the statute. That is because children have the tendency to trust people they are familiar with. For example, you call for your ex-husband's help by looking after your daughter while you attend very important matters. He agrees, and you entrust your daughter's safety in his hands. Unbeknownst to you, however, he takes your daughter away with him so they can bond as father and daughter. Most importantly, he does this without letting you know first as he wanted to hide the girl from you. The young girl recognizes your ex-husband as her father and consents to go with him. Under PC 278, your ex-husband is guilty of parental kidnapping. This is because this type of crime is an offense against you, as a lawful custodian, and not necessarily against the child. Hence, the consent must be given by you and not your daughter. 

Meanwhile, California Penal Code PC 278.5 closely resembles this law, but it is different in a way that the defendant may still be prosecuted even if he/she is a lawful custodian of the child. For example, a divorced couple has joint custody of their only child, which means that they get to spend an equal amount of time with the kid. Out of spite, however, the other parent refuses to return the child to his ex-spouse. For this reason, PC 278.5 is also known as the deprivation of custody. 

Penalties for Parental Kidnapping

Taking a child away from a lawful custodian with the intent to hide, conceal, or keep the child is a serious crime. A person who is guilty under PC 278 will face either a misdemeanor or a felony conviction.

For a misdemeanor, the punishments are as follows:

  • Imprisonment in county jail for not more than 1 year, and/or
  • Pay a maximum fine of $1,000

For a felony, the punishments are as follows:

  • Imprisonment in state prison for 2, 3, or 4 years, and/or
  • Pay a maximum fine of $10,000

How to Handle a Parental Kidnapping Case

A defendant may challenge a charge under PC 278 by presenting the following defenses:

  • The defendant was a lawful custodian of the child;
  • The person whom the defendant took the child from was not a legal custodian; and
  • There was no malicious intent to hide, conceal, keep, withhold, or take the child.

While you can definitely represent yourself, it is still ideal to get a criminal defense attorney to defend you in court.

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