Parental Kidnapping / Child Abduction – California Penal Code Section 278 PC

California Penal Code Section 278 PC known as “parental kidnapping,” “child abduction,” or as “child stealing” makes it a crime for a person who does not have custody rights over a child to take the child away from his or her parent or legal guardian. A person who violates Penal Code 278 PC can be sent to prison for a maximum of four years.

Many parents don’t know this, but they can be charged with kidnapping their own child despite having the intent to do so.

For example, if a woman has sole custody of her child, and the father of the child takes his son and hides him from his wife, he can be charged with parental kidnapping/child abduction in violation of CPC Section 278 PC.

So, if you have been charged with parental kidnapping, you should immediately contact an experienced child abduction defense attorney at The H Law Group to defend you and keep you from going to prison. Our criminal defense attorneys have handled kidnapping cases, so they have the knowledge and experience to achieve the best possible outcome for you.

Schedule your free consultation by filling out the contact form below or by calling us at 1 (213) 370-0404.

Text of California Penal Code Section 278 PC – Child Abduction / Parental Kidnapping

According to California Penal Code Section 278 PC, “Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.”

Note: Although this criminal statute is known as the child abduction criminal statute, it applies to any person who abducts a child, including parents who abduct their own children. For example, a man who divorces his wife and is granted no custody rights goes to his seven-year old’s school and takes the child to watch a basketball game can be charged with parental abduction. This is so because the man does not have a right to custody of the child, and he took the child away from his mom (legal guardian). As you can see from this example, a parent, family member, or relative can be charged with child abduction if they unlawfully take a child from his or her parent. Also, even if both parents have custody over a child, one parent can be charged with parent kidnapping (child abduction) if he or she denies the other parent from exercising his or her right to custody of the child.

Proving a Person Guilty of Parental Kidnapping in Violation of 278 PC

For the prosecution to prove a person guilty of parental kidnapping, it must prove a number of elements beyond a reasonable doubt. If the prosecution fails to prove even one element, it will not be able to convict the defendant of parental kidnapping. The prosecution must prove the following elements:

  • The defendant maliciously took, withheld, or concealed a child from his or her lawful guardian
  • The child was under 18 years of age
  • The defendant did not have custody rights over the child when he or she took, withheld, or concealed the child
  • The defendant had the intent to detain or conceal the child from his lawful guardian

Note: Even if the child consents to go with the defendant and the defendant is the father or mother of the child, the parent can be charged with and convicted of parental kidnapping. Parents often lose custody over their children if it’s terminated by the court, the parent has abandoned his child, or the parent refused custody of his child.

Penalties for Parental Kidnapping

If the prosecution convicts an individual of parental kidnapping in violation of Penal Code Section 278 PC, the consequences differ depending on whether the defendant is charged with felony child abduction or misdemeanor child abduction. This is so because parental kidnapping is a wobbler, meaning the prosecution has the discretion to charge this crime as either a misdemeanor or a felony.

Felony Parental Kidnapping

  • Up to four years in California State Prison
  • A fine of up to $10,000
  • Felony formal probation
  • Payment of court fees and fine

Misdemeanor Parental Kidnapping

  • Up to 12 months imprisonment in county jail
  • A fine of up to $1000
  • Payment of court fees and fines
  • Informal summary probation

Defenses for Parental Kidnapping Charges

If you have been charged with parental kidnapping in violation of California Penal Code Section 287, there are a variety of defenses that your attorney can make to defend you. The following list is not exhaustive of all of the defenses that may apply to you, but rather some of the defenses that may apply.

  • The defendant did not act with malicious intent
  • The defendant had legal custody of the child he’s accused of abducting / kidnapping
  • The defendant did not take the child from a legal custodian of the child
  • The defendant made a mistake as to how long he was able to keep the child
  • The defendant is being falsely accused of parental kidnapping

Examples of Parental Kidnapping in Violation of Penal Code Section 278 PC

A father and mother of a child get divorced. The mother is awarded full custody of her child while the father loses custody of the child. The father goes to his child’s school and takes the child on a camping trip without telling his mom. The father can be charged with and convicted of parental kidnapping in violation of PC 278.

A father and mother of a child get divorced. The mother and father share custody over the child. The father takes the child when it is his turn for custody, but he refuses to return the child to the mother. The father can be charged with parental kidnapping for withholding the child from his mother.

A father and mother are having a lot of marital problems. So, one day, the mother decides to get on a plane and file home to New Zealand with her child to make NZ her new home. The mother does not tell the father about her plans until she arrived in NZ. The mother can be charged with and convicted of parental kidnapping because she took the child away from his father who has custody rights to the child with intent to hide or keep her child away from his father.

Parental Kidnapping vs Child Abduction

Kidnapping is a much more serious offense than child abduction and is defined as the forcible abduction, taking, or stealing another person and moving them a substantial distance against their will, whereas, child abduction aka parental kidnapping only involves an unlawful interference in the custody of a child. Child abduction typically involves depriving another parent or legal custodian of their legal right to be with their child. Child abduction does not involve taking a child forcibly against his or her will.

Contact an Experienced Criminal Defense Attorney

If you or a loved one has been charged with parental kidnapping, commonly known as child abduction, you should immediately contact an experienced criminal defense attorney to defend you and keep you from going to prison. Our attorneys have handled numerous kidnapping cases, so they have the knowledge and experience to best defend you and achieve the best results for you. Schedule your free consultation today by filling out the contact form below or by calling us at 1 (213) 370-0404.

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