In California, the penal code ensures the proper protection of, and safeguards against, criminal wrongdoings towards children. Laws cover the conduct of not just parents towards their children, but also third parties. Children, until the state’s legal age or emancipation, are under the custody of a parent or guardian. Anyone other than the parent or guardian attempting to violate said custody will be violating California Penal Code 278 PC. Furthermore, said violation is against the parent or guardian of the child, and not the child (this would be considered kidnapping).
The following facts must be proven with evidence (beyond a reasonable doubt) in order for the person accused of child abduction to be convicted of the crime. The accused must not have had the right of custody to the child (the person with the right was the parent or someone with a court order of custody). Furthermore, the law protects against someone who “maliciously takes, entices away, keeps, withholds, or conceals any child.” The accused must have committed the aforementioned actions “with the intent to detain or conceal the child from a lawful custodian.” An important note is that the enticing of a child does not necessarily mean the accused took the child by force. It will be considered enticement if the accused used any measure or method to attract or lead a child away from their parent or guardian.
For those who are wrongfully accused of abducting a child, it is imperative that they seek the advice of an experienced attorney. If the accused did have custody of the child, they must prove so. Other possible defences include proving that the taking of the child was not done maliciously or that the person from whom the child was taken from did not in fact have right of custody to the child. Otherwise, if the accused (wrongfully or because the prosecution has met the burden of proof) is convicted of child abduction under Penal Code 278, they face either a misdemeanor of felony conviction. Both a misdemeanor and a felony require the payment of a fine, but a misdemeanor only requires up to one year in jail while a felony sentencing is up to four years in a state prison facility.
