Cal. Prac. Guide Family L. Ch. 7-G California Practice Guide: Family Law Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman Chapter 7. Custody And Visitation G. Removal Of Child From Jurisdiction; Wrongful Taking Or Withholding Of Child 5. [7:620] California Criminal Prosecution for Unlawful “Abduction,” Removal or Detention of Child: Unlawful “abduction,” removal or detention of a child (by a parent or third party) is also a state criminal offense (Pen.C. § 277 et seq.): a. Specific offenses and penalties • [7:621] Every person not having a right to custody, who “maliciously takes, entices away, keeps, withholds, or conceals” a child with intent to detain or conceal the child from a “lawful custodian” shall be punished by up to one year’s imprisonment in county jail and/or a maximum $1,000 fine, or by imprisonment in state prison for two, three or four years and/or a maximum $10,000 fine. [Pen.C. § 278; see People v. Ryan (1999) 76 CA4th 1304, 1313, 91 CR2d 160, 165 & fn. 6] • [7:621.1] Every person who “takes, entices away, keeps, withholds, or conceals” a child and “maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation” shall be punished by up to one year’s imprisonment in county jail and/or a maximum $1,000 fine, or by imprisonment in state prison for 16 months or two or three years and/or a maximum $10,000 fine. [Pen.C. § 278.5(a); see also Pen.C. § 278.5(b)— statute not preemptive of court’s contempt power; and People v. Moses (1996) 43 CA4th 462, 468, 50 CR2d 665, 669 (decided under former statute)—contempt not lesser included offense of unlawful child detention because violation of custody/visitation order not an element of § 278.5 crime] A custody order obtained after occurrence of the conduct constituting a § 278.5 offense is no defense to the crime. [Pen.C. § 278.5(c)] (1) [7:622] Definitions: For purposes of the above crimes, the following definitions apply: (a) [7:622.1] “Lawful custodian” is a person, guardian or public agency having a right to custody of the child. [Pen.C. § 277(d)] 1) [7:622.2] Child protective agencies: A public agency is a lawful custodian (and has a right to physical custody of the child) whenever it takes protective custody or jurisdiction of the child pursuant to statute or court order. [Pen.C. § 277(e)] 2) [7:622.3] Parent’s loss of “lawful custodian” status: Absent a court order to the contrary, a parent loses the right to custody of the child to the other parent if the parent having the right to custody is dead or unable or refuses to take custody, or has abandoned the family. A biological parent whose parental rights are terminated by court order is no longer a lawful custodian and no longer has a right to physical custody of the child. [Pen.C. § 277(f); see also People v. Ryan (1999) 76 CA4th 1304, 1313–1314, 91 CR2d 160, 165–167 & fn. 8—father “refused” custody by initially denying paternity, moving out of state without telling mother of his whereabouts, failing to send support, and visiting child only 3 times during first 4 years]

a) [7:622.4] “Abandonment” is “an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation.” [People v. Ryan, supra, 76 CA4th at 1315, 91 CR2d at 167] “Abandonment” may also be found when a parent fails or refuses to maintain a child under age 14. [Pen.C. § 271a] Mere “token” efforts to support or communicate with the child demonstrate an intent to abandon. [People v. Ryan, supra, 76 CA4th at 1315–1316, 91 CR2d at 167–168—father “abandoned” child by deserting him, having virtually no communication and failing to provide support] (b) [7:623] “Right to custody” means the right to physical care, custody and control of the child pursuant to a custody order (below) or, absent a court order, by operation of law or pursuant to the UPA (Fam.C. § 7600 et seq.). [Pen.C. § 277(e); see People v. Ryan, supra, 76 CA4th at 1312, 91 CR2d at 165 & fn. 7—“presumed father” under Fam.C. § 7611 has right to custody by operation of law; People v. Mehaisin (2002) 101 CA4th 958, 963–964, 124 CR2d 683, 686–687—one period of liberal visitation not tantamount to “right to custody”] (c) [7:623.1] “Custody order” (or “court order”) is a determination (whether temporary or permanent, initial or modified) made by a court of competent jurisdiction that affects the custody or visitation of a child and is issued in the context of a custody proceeding (below). A “custody order” continues in effect until it expires, is modified or rescinded, or terminates by operation of law. [Pen.C. § 277(b); see People v. Ryan, supra, 76 CA4th at 1314, 91 CR2d at 166—father had no right to physical custody of child notwithstanding his general right to legal custody] (d) [7:623.2] “Custody proceeding” is an action for marriage dissolution or legal separation, dependency, guardianship, termination of parental rights, adoption, paternity or other proceeding where custody is in issue (but not including DVPA proceedings or actions under Fam.C. §§ 17402, 17404). [Pen.C. § 277(c)] (e) [7:623.3] “Keeps” or “withholds” the child means retaining physical possession of the child “whether or not the child resists or objects.” [Pen.C. § 277(g)] (f) [7:623.4] “Abduction” is a shorthand term for taking, enticing away, keeping, withholding or concealing the child. [Pen.C. § 277(k)] (2) [7:624] “Aggravating” circumstances: At the sentencing hearing following conviction for a § 278 or § 278.5 offense, the court must consider any “relevant factors and circumstances in aggravation,” including but not limited to (Pen.C. § 278.6(a)): • Exposing the child to a substantial risk of physical injury or illness; • Inflicting or threatening infliction of physical harm to a parent or lawful custodian of the child or to the child at the time of or during the abduction; • Harming or abandoning the child during the abduction; • Taking, enticing away, keeping, withholding or concealing the child outside the U.S.; • Failing to return the child to the lawful custodian; • Defendant’s previous abduction or threatened abduction of the child; • Substantially altering the child’s name or appearance; • Denying the child appropriate education during the abduction; • Length of the abduction; • The child’s age. [Pen.C. § 278.6(a)(1)-(10)]

(3) [7:625] “Mitigating” circumstances: Conversely, at the sentencing hearing, the court must consider any “relevant factors and circumstances in mitigation,” including but not limited to (Pen.C. § 278.6(b)): • Defendant’s return of the child unharmed and before arrest or issuance of an arrest warrant, whichever is first; • Defendant provided information and assistance leading to the child’s safe return. [Pen.C. § 278.6(b) (1) & (2)] (4) [7:626] Restitution: In addition to the normal §§ 278/278.5 penalties (¶ 7:621–621.1), the court must order defendant to pay restitution to the district attorney for costs incurred in locating and returning the child (pursuant to Fam.C. § 3134) and to the victim for expenses reasonably incurred by, or on behalf of, the victim in locating and recovering the child. [See Pen.C. § 278.6(c)—restitution award “shall constitute a final judgment and shall be enforceable as such”]