Penal Code § 278.5 PC - Deprivation of Custody
Table of contents
Click To travel To Chapters
1. What is Penal Code § 278.5 PC?
Penal Code § 278.5 PC Law Reads As Followed:
Any person who maliciously takes, entices away, keeps, withholds, or conceals a child under the age of 18 years, with the intent to deprive a lawful custodian of their right to custody, or to deprive another person of their lawful right to visitation with the child, is guilty of a crime.
2. What Are Examples of Penal Code § 278.5 PC?
Penal Code § 278.5 PC, commonly referred to as “Deprivation of Custody,” is a law in California that makes it a crime for someone to maliciously take, withhold, or conceal a child in violation of another person’s lawful right to custody or visitation. This law typically comes into play during custody disputes or when a person unlawfully interferes with the established custody and visitation rights of another individual.
In this article, we will explore various examples of Penal Code § 278.5 PC to better understand the different scenarios where this law may apply.
1. Example of a Parent Keeping a Child Beyond Custody Agreement
Imagine a situation where a divorced couple, Sarah and John, have a court-ordered custody arrangement. The court has granted Sarah custody of their son, Tim, on weekdays, and John has custody on weekends. One weekend, after the visitation period is over, John refuses to return Tim to Sarah, even though she has every legal right to him according to the custody order.
In this case, John could be charged with Deprivation of Custody under Penal Code § 278.5 PC, even if Tim is willing to stay with him. The law applies as long as John maliciously withheld Tim from Sarah, the lawful custodian, despite the existing court order. John’s intent to deprive Sarah of her custodial rights, even if done without force or resistance from the child, constitutes a violation of the law.
2. Example of a Parent Enticing a Child to Leave with Them
Another scenario might involve a parent, Rachel, who shares custody of her daughter, Emma, with her ex-husband, Mark. One day, Rachel shows up at Emma’s school and convinces her to skip class and come with her, saying they are going on a fun outing. Emma, excited about the prospect of spending time with her mom, agrees and leaves school with her.
Even though Emma willingly goes with her mother, Rachel could still be charged under PC 278.5. In this case, Rachel’s action of enticing Emma away, especially if she did so without Mark’s knowledge or consent, may be considered malicious behavior that deprived Mark of his rightful visitation rights, thus violating Penal Code § 278.5.
3. Example of Withholding a Child for Longer Than Authorized
In a third example, a father, Daniel, has a summer custody agreement with his ex-wife, where he is allowed to take their two children, Mia and Noah, for two weeks every year. However, after the two-week period ends, Daniel refuses to return them to their mother, citing a minor issue with his car that prevents him from driving them back. He fails to notify the mother and keeps them with him for an extended period.
Even though Daniel initially had lawful custody of the children, his decision to withhold them longer than authorized by the court order could lead to charges under Penal Code § 278.5. This would be especially true if he acted with malicious intent, such as intending to cause emotional distress or disrupt the mother’s rights.
4. Example of Deprivation by a Non-Custodial Relative
Another example of deprivation of custody could involve a non-custodial family member, such as a grandparent or aunt, who attempts to take custody of a child in defiance of a court order. For instance, Maria, who is not the legal custodian of her niece, Lily, decides to pick her up from school one afternoon and refuses to return her to Lily’s legal guardian, her mother.
If Maria maliciously takes or conceals Lily in a way that interferes with the mother’s lawful custodial rights, she may face charges under PC 278.5, even if Lily initially goes willingly. The law applies in these situations to protect the legal rights of custodians and to ensure that a child’s custody and visitation rights are not violated.
5. Example of a Government Agency Being Deprived of Custody
In some cases, a child may be in the custody of a government agency, such as the California Department of Children and Family Services (DCFS). If a parent or guardian, out of desperation or concern for the child’s well-being, takes the child from the agency’s care without authorization, they could be charged with deprivation of custody.
For example, Carla’s daughter, Mia, is placed in a foster care facility after DCFS determines that she is at risk of harm in her mother’s care. One day, Carla visits the facility, convinces Mia to leave with her, and takes her home. Even though Carla is Mia’s mother, she may still be guilty of Deprivation of Custody under Penal Code § 278.5 because Mia was in the legal custody of the government agency, and Carla’s actions deprived the agency of its legal right to care for Mia.
6. Example of Malicious Behavior Leading to Charges
A case of malicious intent often involves a history of contentious behavior. Consider the example of Tina, who has joint custody of her son, Ethan, with her ex-husband, Mark. Over time, Tina becomes increasingly bitter toward Mark due to their ongoing disputes. One day, Tina intentionally withholds Ethan from visiting Mark, knowing that it will frustrate him and cause emotional harm. She refuses to comply with the court-ordered visitation schedule, and when Mark contacts her, she ignores his calls.
In this situation, Tina’s malicious behavior of intentionally denying Mark his visitation rights could result in charges under PC 278.5 for Deprivation of Custody. Her actions show clear malicious intent, which is a critical element of this crime.
3. What are Common Defenses Against Penal Code § 278.5 PC?
Penal Code § 278.5 PC, which addresses Deprivation of Custody, is a serious charge that can arise from situations where one party maliciously takes, withholds, or conceals a child, depriving another person of their lawful custodial or visitation rights. As with any criminal charge, those accused under this statute have certain legal defenses available to them, which may allow them to avoid conviction or reduce the severity of their charges.
In this article, we will discuss the most common defenses against Penal Code § 278.5 PC – Deprivation of Custody – and how they can be applied in specific situations.
1. The Other Person Did Not Have Custody or Visitation Rights
One of the most straightforward defenses to a charge of deprivation of custody is showing that the person alleging the violation did not actually have legal custody or visitation rights. Under Penal Code § 278.5, the accused can only be convicted of depriving someone of custody or visitation if that person had a lawful right to either.
In some cases, disputes over custody can lead to misunderstandings or false accusations. For example, a parent or relative might claim that the other parent or guardian unlawfully took or withheld the child, but if the accused can prove that the other party did not have any valid legal claim to custody or visitation at the time, they could potentially avoid conviction.
Example:
Suppose a mother and father are in the middle of a divorce, and there is no finalized custody agreement. If the mother takes the child with her based on a verbal understanding, but the father is later claiming deprivation of custody, the defense could argue that the father never had a legal right to visitation at the time.
2. The Defendant Was Protecting the Child
California law provides a legal defense for individuals who take or keep a child because they believe it is necessary to protect the child from immediate bodily injury or emotional harm. This defense applies if the defendant had a good faith and reasonable belief that the child would be in danger if left with the other party, and the defendant took action to prevent harm.
For this defense to be valid under Penal Code § 278.5, the defendant must also fulfill certain requirements:
They must report the child’s location to the authorities within 10 days.
They must file a custody proceeding in court within 30 days.
They must keep the district attorney informed of any changes to the child’s location.
This defense is often used in cases of domestic violence, where one parent may fear that the child will be emotionally or physically harmed if left with the other parent.
Example:
A mother, who is the victim of domestic violence, fears that her child will be harmed by the father during his visitation period. In this case, the mother may take the child in an attempt to protect them from immediate harm. If she reports the child’s location within the required time frame and follows through with the necessary legal steps, this defense could apply.
3. The Defendant Did Not Act Maliciously
To be convicted under Penal Code § 278.5, it is crucial that the defendant acted maliciously. Maliciously, in this context, means that the defendant acted with an intent to disturb, defraud, annoy, or injure another person. If the defendant did not act maliciously – for example, if the withholding or taking of the child was unintentional, due to confusion, or was done out of carelessness – then they may not be guilty of deprivation of custody.
In some cases, misunderstandings about custody schedules, accidental delays, or simple mistakes can lead to accusations of deprivation of custody. If the defendant’s actions were not done with malicious intent, this could be a valid defense.
Example:
A father forgets to drop off his child with the mother after a weekend visitation due to a scheduling mistake. If the father immediately returns the child after realizing the error and did not intend to harm or annoy the mother, his actions may be considered accidental or negligent rather than malicious.
4. False Accusations
False accusations are unfortunately common in custody disputes, as they can be used to gain leverage in a divorce or custody battle. If the defendant can prove that they were falsely accused of depriving someone of custody, it can serve as a strong defense to a Penal Code § 278.5 charge.
In cases where there is a history of personal conflict or animosity between the parties involved, false claims may be made to manipulate the legal system or to gain custody advantage. Experienced criminal defense attorneys can help uncover these types of false accusations by examining the credibility of the accuser, reviewing evidence, and challenging any inconsistencies in the accusations.
Example:
A parent who is facing a bitter custody battle accuses their ex-spouse of depriving them of their visitation rights. However, evidence shows that the ex-spouse was following the agreed-upon schedule and that the accusation was made out of spite. This could be a case where the defendant can argue that the accusation is false and seek to have the charges dismissed.
5. The Defendant Had a Reasonable Belief That the Child Was in Danger
In some cases, individuals may argue that they had a reasonable belief that a child was in danger and took action accordingly. This defense is similar to the “protecting the child” defense but can be used more broadly. If a defendant took or withheld a child because they believed the child was at risk, they might be able to argue that they acted out of concern for the child’s well-being, not out of malice or ill intent.
In these cases, it is crucial to show that the belief was reasonable and that the defendant acted in good faith to protect the child.
Example:
A mother hears about an unsafe situation involving her child’s father, such as a history of neglect or abuse. She takes the child out of concern for their safety but fails to report the incident to authorities in a timely manner. The defense would need to demonstrate that the mother’s belief that the child was in danger was reasonable at the time of her actions.
our clients say it best
Client Testimonials
4. What are The Penalties for Violating Penal Code § 278.5 PC?
Penal Code § 278.5 PC, known as the law on Deprivation of Custody, criminalizes the malicious taking, withholding, or concealing of a child, which deprives another person of their lawful custodial or visitation rights. The law was created to protect individuals who have legal custody or visitation rights over a child, ensuring that their rights are respected and upheld in legal situations. However, violation of this law can have serious legal consequences, with penalties that can vary based on the severity of the offense and the circumstances of the case.
In this article, we will discuss the penalties for violating Penal Code § 278.5 PC, including the potential charges, fines, and sentencing factors that can influence the outcome of a case.
Understanding the “Wobbler” Offense
Deprivation of custody under Penal Code § 278.5 is classified as a “wobbler” offense, meaning it can be charged as either a misdemeanor or a felony, depending on the specific circumstances of the case and the defendant’s criminal history.
Misdemeanor: If the offense is charged as a misdemeanor, it is considered less serious and comes with less severe penalties.
Felony: If the offense is charged as a felony, it carries more serious penalties, including longer prison sentences.
Ultimately, whether the offense is charged as a misdemeanor or felony is at the discretion of the prosecutor, who will consider the facts of the case and factors such as the defendant’s prior criminal history, the severity of the violation, and whether there are aggravating circumstances.
Misdemeanor Penalties
If a person is convicted of Deprivation of Custody as a misdemeanor, the penalties may include the following:
Probation: The defendant may be sentenced to summary probation, which allows them to avoid jail time and instead serve their sentence under supervision, typically with conditions such as counseling, community service, or attendance at parenting classes.
Jail Time: A misdemeanor conviction for deprivation of custody can result in up to one year in county jail. Jail time may be imposed if probation is not granted or if the judge determines that incarceration is necessary based on the severity of the offense.
Fines: The court may impose a fine of up to $1,000, depending on the case. Fines are typically applied in addition to any other penalties such as jail time or probation.
In some cases, the court may also require restitution, meaning the defendant could be required to pay for any costs incurred by the victim or law enforcement for locating and returning the child.
Felony Penalties
If the Deprivation of Custody charge is elevated to a felony, the penalties are much more severe. A felony conviction for violating Penal Code § 278.5 can lead to the following consequences:
Probation: Felony probation, also known as formal probation, may be granted in some cases. Formal probation is more restrictive than summary probation and typically requires regular check-ins with a probation officer, drug testing, or other court-ordered conditions. If the defendant violates probation, they could face additional penalties, including jail or prison time.
Jail or Prison Time: A felony conviction for deprivation of custody can result in a county jail sentence of 16 months, two years, or three years. In California, jail time for a felony offense is served in county jail under the realignment program, which is part of California’s initiative to reduce overcrowding in state prisons.
Fines: A felony conviction for deprivation of custody may come with a fine of up to $10,000. This fine can be significant, and the defendant may also be required to pay restitution to cover any costs incurred by the lawful custodian or law enforcement in locating and returning the child.
Restitution: In addition to fines, a convicted individual may be required to pay restitution to cover the costs of finding and returning the child. Restitution may also include costs incurred by the victim in trying to locate the child, such as travel expenses or lost income due to the abduction.
Sentencing Factors in Deprivation of Custody Cases
When determining the appropriate sentence for a violation of Penal Code § 278.5, the court will consider several factors, both in aggravation and mitigation, that can affect the severity of the punishment.
Aggravating Factors
Aggravating factors are circumstances that can lead to a more severe sentence. These may include:
The child being exposed to a substantial risk of physical injury or illness during the deprivation.
The defendant inflicting harm or threatening harm to the child or another person during the offense.
The defendant’s actions resulted in substantial emotional harm to the child or the lawful custodian.
The defendant has a prior criminal record or a history of similar offenses.
The child was taken or withheld outside of the U.S., making it more difficult to return the child.
The deprivation of custody was extended over a long period or the child was relatively young.
Mitigating Factors
Mitigating factors are circumstances that can lead to a lighter sentence. These may include:
The defendant returned the child unharmed before they were arrested or a warrant was issued for their arrest.
The defendant cooperated with authorities and provided valuable information that helped return the child safely.
The defendant demonstrated remorse or made efforts to rectify the situation after the offense occurred.
Multiple Counts of Deprivation of Custody
If a defendant is accused of depriving the custody of more than one child at the same time, they could face multiple charges and be punished for each individual offense. For example, if a defendant is accused of taking or withholding the custody of three children at once, they could be charged with and sentenced for three separate violations of Penal Code § 278.5.
This means that if the defendant is convicted of three counts of deprivation of custody, they could face the maximum penalties for each count, leading to significant jail or prison time and substantial fines.
5. What Are the Related Offenses To Penal Code § 278.5 PC?
Penal Code § 278.5 PC, known as Deprivation of Custody, addresses situations where a person maliciously takes, withholds, or conceals a child, depriving another person of their lawful custodial or visitation rights. While Penal Code § 278.5 is a distinct offense, it is related to several other criminal statutes in California that deal with the unlawful taking or retention of a child, particularly in custody disputes or instances involving abductions.
In this article, we will explore the related offenses to Penal Code § 278.5 PC, including child abduction, kidnapping, and other laws that could apply in similar situations.
1. Penal Code § 278 – Child Abduction
One of the most directly related offenses to Penal Code § 278.5 PC is Penal Code § 278 – Child Abduction. While both laws deal with the unlawful taking or withholding of a child, they differ in the type of offender and the circumstances involved.
Child Abduction (Penal Code § 278 PC) applies when someone who does not have legal custody or visitation rights unlawfully takes or retains a child. This could include a non-custodial parent, relative, or stranger who takes a child without consent and with the intent to deprive the lawful custodian of the child.
Deprivation of Custody (Penal Code § 278.5 PC), on the other hand, applies when someone with lawful custody or visitation rights (such as a parent) deprives another person of those rights, typically by withholding or concealing the child in violation of a court order.
Example:
If a non-custodial grandmother takes her grandchild from school without permission and refuses to return them, she may be charged with child abduction under Penal Code § 278. However, if a custodial mother fails to return her child to the father according to a court-ordered custody agreement, she could be charged with deprivation of custody under Penal Code § 278.5.
Penalties for Child Abduction: Like Penal Code § 278.5, child abduction is also a wobbler offense, meaning it can be charged as either a misdemeanor or felony depending on the circumstances. If charged as a felony, it can result in a prison sentence of two, three, or four years.
2. Penal Code § 207 – Kidnapping
Kidnapping (Penal Code § 207 PC) is a more serious offense compared to Deprivation of Custody, as it involves the unlawful movement of a person (including a child) a substantial distance, usually without their consent, and typically by force, fear, or duress. Kidnapping can be committed against anyone, including adults, and often involves the use of violence or intimidation.
Unlike deprivation of custody, which does not require force or fear, kidnapping requires that the child be moved a significant distance (usually outside of the area where they were initially) and that the movement is done with force or fear.
Example:
If a person forcibly drags a child into a car and drives them away, intending to hold them against the child’s will or for ransom, this would likely be considered kidnapping under Penal Code § 207. A Penal Code § 278.5 charge might apply in a case where a parent unilaterally takes a child but does not use force or intimidation.
Penalties for Kidnapping: Kidnapping is a felony offense, with penalties ranging from three, five, or eight years in state prison. If the victim is a child under 14 and the defendant is not their biological or adoptive parent, the prison sentence can increase to 11 years.
3. Penal Code § 278.7 – Custodial Interference
Custodial interference (Penal Code § 278.7 PC) is a crime that involves a person with legal custody or visitation rights taking a child in violation of a court order, but without the malicious intent required for Deprivation of Custody under Penal Code § 278.5. Essentially, custodial interference happens when a person unlawfully takes or retains a child in violation of a court order, but the conduct may not rise to the level of malicious intent required by Penal Code § 278.5.
Custodial interference charges can be brought against a parent or legal guardian who violates a custody order, even if they did not act with malice but instead acted out of an attempt to change or challenge the existing custody arrangement.
Example:
A father refuses to return his child to the mother after their scheduled visitation, not because of malicious intent but because he believes the mother is unfit to care for the child. His refusal to return the child could be considered custodial interference under Penal Code § 278.7.
Penalties for Custodial Interference: This offense is typically charged as a misdemeanor and can result in penalties including up to one year in county jail and/or a fine of up to $1,000.
4. Penal Code § 273a – Child Endangerment
Child endangerment (Penal Code § 273a PC) involves situations where a child is placed in a dangerous or harmful situation by a parent or guardian. While this offense does not specifically address the withholding of custody, it may be relevant in cases where the actions that lead to deprivation of custody also place the child at risk of harm.
For example, if a parent unlawfully takes a child from a foster care facility, they could potentially face child endangerment charges if the child is exposed to dangerous conditions while in their care.
Example:
If a parent takes their child from school without notifying the other parent or authorities and exposes the child to unsafe conditions (e.g., homelessness or physical danger), this could lead to a charge of child endangerment.
Penalties for Child Endangerment: Child endangerment is a wobbler offense, which can be charged as either a misdemeanor or felony. If convicted of a felony, penalties can include two, four, or six years in state prison.
5. Penal Code § 273d – Child Abuse
Child abuse (Penal Code § 273d PC) involves inflicting physical injury or harm on a child. In cases where deprivation of custody also involves physical harm to the child, this charge may apply.
Example:
A parent who takes their child away from the other parent’s custody and then harms the child in some way could face both Deprivation of Custody charges under Penal Code § 278.5 and child abuse charges under Penal Code § 273d.
Penalties for Child Abuse: Child abuse is generally charged as a felony and can result in two, four, or six years in state prison, with additional penalties for severe injury or repeated abuse.
Protecting Your Rights, Defending Your Future
Get in touch with our lawyers today to schedule a consultation and learn how we can help you. We are here to answer your questions and provide you with the support you need during this difficult time.
Client Satisfaction Is Priority
You Are More Than What They Say
We Always Go The Extra Mile