Penal Code Section 278.5 controls the criminal law in the area of Court orders and custody proceedings. When a parent or other person or even a governmental agency has a right to custody of a child according to a Family Law Court order or any court of competent jurisdiction, that person has the right to physical care, custody and control of the child.
Disputes often arise between father and mother during divorce proceedings over the custody of their child or children.
When the Family Law Court makes an order regarding custody or visitation one side or the other can be very unhappy. This dissatisfaction with the custody order can lead to one parent or the other disobeying the court. This disobedience of the court can lead to charges being filed by the District Attorney which are often called “child stealing”.
The parent or other members of the family who think the Court “got it wrong” can find themselves charged with violating Penal Code Section 278.5. The most common way a person violates this code section is to refuse to return a child after a court ordered change in custody or a court ordered visitation.
Many times the criminal defendant in a case like this believes he or she was in the right and had no other choice. The reason for the violation of the court order can be important. There is a defense to a violation of Penal Code Section 278.5 but it is very technical and to make it apply to a set of facts all terms of the defense must be met.
It is a defense to a violation of child abduction pursuant to Penal Code Section 278.5 if:
A person has a right to custody of a child, who with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm takes, keeps, withholds, or conceals that child.
Domestic violence victims also have a defense to this code violation if they believe the child will suffer emotional harm unless they act to protect the child. (Penal Code Section 278.7)
However, if a person conceals, keeps, withholds, or takes a child away that person must:
Within a reasonable period of time (10 days) make a report to the District Attorney of the county where the child resided before they took or otherwise concealed the child. The person is also required to list the name address and telephone number of the child and the person and the reasons the child was taken or otherwise concealed. Then the person who has taken the child must commence a custody proceeding within 30 days.
To successfully defend against charges like this a lawyer must know the nuances of child abduction. Rarely are cases involving child abduction simple cases of all right or all wrong. Emotions are strong and beliefs in the necessity of action are heartfelt by the person who does the taking of the child.
The criminal defense lawyer has to be sensitive and open to all the issues in the case of child abduction. Many defenses are available, even those that don’t strictly adhere to the letter of the law. Consult a Certified Specialist in Criminal Law to be sure all your rights are protected.