Child Abduction by Depriving Right to Custody or Visitation

California Penal Code 278.5 PC

Penal Code 278.5 PC – Overview

What is the definition of child abduction by depriving the right to custody or visitation under Penal Code 278.5 PC?

It is unlawful for a person to take, entice away, keep beyond permittance, withhold, or conceal a child and maliciously deprive the child from lawful custody or right of custody from another, including the right to visitation.

Is there an age limit or reference for a child for a violation of Penal Code 278.5 PC?

Yes. Since the conduct can be malicious there is an inference of indecency and lewdness that can result in harm. Therefore, the conduct must refer to a child under the age of 14 years of age.

What is the mental state specified under Penal Code 278.5 PC?

The mental state required for a violation of Penal Code 278.5 PC is malicious and intentional. Malicious conduct is any intent to do an act that is unlawful with the purpose that the act results in substantial injury and bodily harm. Intentional as defined under Penal Code 278.5 PC is an act that is done or intended to be completed with purpose. As applied to Penal Code 278.5 PC, the party at issue must intend with purpose to retain a child under the age of 14 without force, or fear but is consciously aware that if necessary to accomplish this it will result in depriving another of lawful custody over the child, no matter how brief, even if serious bodily harm or injury results.

Is there a definition of possession under Penal Code 278.5 PC?

Yes. Possession as defined under Penal Code 278.5 PC can qualify as active or constructive possession. Active possession is defined as physical possession by grip or containment. Constructive possession is sustained possession by reach or authorization that designates possession through 3rd parties, indicating a reference of authority, control, association, or placement. The element of possession needs to be defined because of the elements of [taking, enticing away, keeping beyond permittance, withholding, or concealing a child and or maliciously depriving] as described under Penal Code 278.5 PC. The possession or control exhibited cannot place the child in imminent fear or apprehension of harm.

Penal Code 278.5 PC – Sentencing

A violation of Penal Code 278.5 PC is charged as a misdemeanor or felony. Punishment, as a misdemeanor, includes confinement not exceeding 1 year in jail; and fines not exceeding $1000 dollars. Punishment, as a felony, includes confinement terms of 16 months, 2, or 3 years in prison with fines not exceeding $10,000 dollars.

What is an example of a violation of Penal Code 278.5 PC?

1.Dan is not happy with his son’s friend James. James did not clean up after himself and spilt milk on Dan’s carpet. Dan told James to sit in the corner and behave. James compiled after hearing Dan say, “Stay in the corner and be a good boy. I am a better father to you than Charles”. James’s father Charles is good friends with Dan. Charles called from his cell phone to pick up James, and asked Dan to accompany his son to the car. Dan on the phone said no to Charles, “Stay in the car and let a grown man raise your son”. Charles was not intimidated or scared of Dan but was very humiliated by what he just stated to him. Dan also came from outside his home and said the same to Charles in front of his neighbors who laughed. They both are executives in two companies that are currently in the newspaper for charitable deeds, so they are very particular about their respective public images. After staying in his car for another hour out of humiliation, he called the Police. The police after knocking on the Dan’s door, retrieved James, and arrested Dan.

Penal Code 273.5 PC – Defending

Mistake in Fact – The accused party intended to deprave but that person still had implied parental or custodial rights that preceded the victimized party.
Mistake in Law – a) The child was above the age of 14. b) The party asserting parental or custodial rights did not assume those rights under an objective standard.
Duress
Necessity – To prevent child abuse.