Sec 278.5 of the California Penal Code penalizes the abduction of a child in violation of a custody order or visitation rights. This is sometimes called as “child detention” and is violated through the following manner:
- An individual maliciously takes, entices away, keeps, withholds or conceals;
- A child;
- From the child’s lawful custodians.
A lawful custodian is a person who retains the physical care, custody and control of an individual child. On the other hand, an individual has a right of visitation when a lawful court allows the interaction between the person and the child at given periods of time.
This law is similar to Sec 278 of the California Penal Code or child abduction. While there are similarities the following are the differences between the two specific laws:
- Sec 278.5 of the California Penal Code applies to all persons but was primarily addressed to unlawful abduction by parents while Sec 278 applies to all persons without any right of custody over the child;
- ec 278.5 is violated through the interference of another person’s right of visitation and not just their custodial rights under Sec 278;
- The crime of child detention is slightly less serious compared to child abduction, which is a prison time of three years in state prison for Sec 278.5 compared to four years in state prison for Sec 278;
This crime is called a wobbler offense, which means that this crime can be charged either as a felony or misdemeanor offense depending on the facts of the case and the individual’s criminal history. If the individual is convicted of a misdemeanor offense, then the imposable penalty would be one (1) year in a county jail and payment of a fine of up to $1,000. For a felony charge, the imposable penalty is up to sixteen (16) months or two (2) or three (3) years in state prison and payment of a fine of up to $10,000.
Also included in the cost to be paid are the reasonable costs incurred in the effort to locate, recover and return the child. Furthermore, at the sentencing hearing, the defense can present evidence to lower the sentence imposable when return the child unharmed and return the child before you were arrested or otherwise discovered or provided information that helped lead to the child’s return. On the other hand, if the prosecutor establishes that the child was exposed to substantial risk of physical injury or illness, infliction or threatened infliction of physical harm upon the child or anyone else who stood in your way or the substantial alteration of the appearance or name of the child or the child was never returned, then the statutory maximum penalties would be applied.
The crime of child abduction in violation of custody or visitation rights is a serious offense in California. Should you be or know anyone undergoing this process, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.