Domestic Violence - Criminal Interference With Custody or Visitation Rights of a Child; Removal or Concealment of Child During Adoption Proceeding

Domestic Violence - Criminal Interference With Custody or Visitation Rights of a Child

The interference with custodial or visitation rights of another is a criminal offense and can be charged as a felony or misdemeanor under section 278.5 of the Penal Code. The offense is defined as, “to take, entice away, keep, withhold, or conceal a child, maliciously depriving the lawful custodian the right to visitation.”1 The crime includes, but is not limited to, a parent or a parent's agent. 2

The sentence for a violation is county jail for not over 1 year, or by imprisonment under 1170(h) for 16 months, or 2 or 3 years. 3 If convicted a defendant must pay restitution to the district attorney and to the victim for the costs in locating and recovering the child. Obtaining a custody order after the child's abduction is not a defense.4 For a person to be deprived of custody or visitation they must have a right to physical custody or visitation when the offense is committed.

One defense to a violation of section 278.5 is when a person who otherwise has a right to custody or visitation, has, “a good faith and reasonable belief” that the child will suffer immediate bodily injury or emotional harm if left with another person also having custodial or visitation rights, and removes or withholds the child.5

A similar defense is when a person with a right to custody or visitation and has a good faith belief the child has been a victim of domestic violence by another person having physical custody and removes or withholds the child.6

Under either of these defenses when a person removes or withholds a child they must, within a reasonable time report to the district attorney's office of the county where the child was removed from who they were residing with including their name, address and telephone number, and the reasons the child was taken or withheld. They must also begin a custody proceeding in that county.7

A reasonable time within which to make a report is 10 days and a reasonable time to commence a custody proceeding is within 30 days. 8

Sentencing Considerations

When a person is convicted and sentenced for a violation of sections either sections 278 or 278.5, a court must consider at the sentencing hearing certain factors in “aggravation” (making more serious) or “mitigation” (making less serious)

Aggravation factors under Section 278.6(a):

(a) The child was exposed to a substantial risk of illness or injury.

(b) The defendant physically harmed the child or the parent or lawful custodian or threatened to do so during the abduction.

(c) The defendant harmed or abandoned the child during the abduction.

(d) The child was taken, enticed, kept, withheld, or concealed outside the United States.

(e) The child has not been returned to the lawful custodian.

(f) The defendant previously abducted or threatened to abduct the child.

(g) The defendant substantially altered the child's name or appearance.

(h) The defendant denied the child appropriate education during the abduction.

(i) The length of the abduction.

(j) The child's age.

Mitigation factors under Section 278.6(b):

(a) The defendant returned the child unharmed before the earlier of an arrest or issuance of an arrest warrant

(b) The defendant assisted and information leading to the child's safe return.

Criminal Removal or Concealment of Child during Adoption Proceeding.

A person removing or hiding of a child during an adoption proceeding under California Family Code sections, 8713, 8803, or 8910 commits a crime which can either be a felony or misdemeanor. The sentence is if concealment is within the county where the adoption proceeding is pending or where the child has been placed for adoption, or removal is to a place within the state: County jail for not more than one year;9 if removal is to a place outside of the state: Imprisonment under 1170(h).10

1 Section 278.5 of the California Penal Code
2 Section 277(i) of the California Penal Code
3 Section 278.5(a )of the California Penal Code
4 Section 278.5(c) of the California Penal Code
5 Section 278.7(a) of the California Penal Code
6 Section 278.7(b) of the California Penal Code
7 Section 278.7 of the California Penal Code
8 Section278.7(d) of the California Penal Code
9 Section 280(a) of the California Penal Code
10 Section 280(b) of the California Penal Code