Domestic Violence - Child Abduction General Considerations
Sections 277, 278, and 278.5 of the California Penal Code describes criminal acts classified as child abduction or interference with a person’s custodial or visitation rights. These acts include the confinement, or concealment of a child to prevent a person with legal custody from exercising that right. Having legal custody would not only include the natural parents, but could include any person acting as a legal guardian, or any person with a present legal right to custody of the child.
The crime applies to the commission of an offense not only by those with no legal custodial right but also those who may have those rights but interfere or prevent another from exercising their legal custodial rights. Here often the parents of a child are separated or divorced both having legal custody ordered by a court and one of the parents interferes with or violates that order in the commission of an act against the other. 1
The perpetrator need not use force. Persuasion, fraud, inducements, or deception constitute abduction when used to take the child in violation of the statute.4 Consent is not a defense, the crime is not committed against the child but against the person having legal custody.5
Under certain circumstances the police may take custody of a child from a person having legal custody. Those circumstances include when it reasonably appears that the person is likely to conceal the child, or evade the jurisdiction of a court with the child.6 The police may also take custody of a child when there is no person with authority to take custody;7 or where it is unclear who has legal custody and there exist competing claims; 8 or where the child is the subject of an abduction;9 and where a police officer arrests a person for a violation of sections 278 or 278.5.10
Under some circumstances a district attorney under family code section 3130 may obtain a protective custody warrant to recover an unlawfully detained or concealed child. The warrant must order the arresting agency to place the child in protective custody, or return the child as directed by the court.
In setting bail for a person arrested under section 278 or 278.5 the court must consider whether the child has been returned to its lawful custodian, and if not, whether there is an increased risk that the child may not be returned, or that the defendant may flee the jurisdiction, or by flight or concealment, evade the authority of the court. 11Taking by Parent
Both natural parents of a child have equal custodial rights of their child and there can be no violation of 278 if one parent takes custody from the other. However 278 can be violated by one parent of a minor child whose custody has been placed with the other parent by a court order. 12 Also, if a parent abandons their child 278 can apply since they have lost their custodial rights due to the abandonment.
1 Sections 278, 278.5 of the California Penal Code
2 Section 277(k) of the California Penal Code
3 Section 279.1 of the California Penal Code
4 People v. Moore (1945) 67 C.A.2d 789, 791, 155 P.2d 403 5 People v. Torres (1920) 48 C.A. 606, 608, 192 P. 175; People v. Moore (1945) 67 C.A.2d 789, 792, 155 P.2d 403 6 Section 279.6(a)(1) of the California Penal Code
7 Section 279.6(a)(2 ) of the California Penal Code
8 Section279.6(a)(3) of the California Penal Code
9 Section 279.6(a)(4 )of the California Penal Code
10 Section 279.6(c) of the California Penal Code
11 Section279.5 of the California Penal Code
12 Wilborn v. Superior Court (1959) 51 C.2d 828, 830, 337 P.2d 65; Cline v. Superior Court (1982) 135 C.A.3d 943, 947, 949, 185 C.R. 787 People v. Hyatt (1971) 18 C.A.3d 618, 622, 96 C.R. 156,