There are different charges that could be filed in a case involving allegations of keeping a child from a parent or other person with custody of the child. The specific charge matters here, as does the legal status of the parties.
Child abduction by a person who does NOT have right of custody
If it’s child abduction by a person who does NOT have the right to custody, that’s covered in Penal Code section 278. That’s a “wobbler” meaning it can be either a misdemeanor (up to a year in county jail) or a felony (up to 4 years in state prison).
Child abduction by a person who DOES have a right of custody
If it’s child abduction by a person who does have right to custody (such as visitation orders or other legal right to the child, but who keeps them from the other custodial parent), that’s covered in Penal Code section 278.5. That’s also a “wobbler”, but the maximum on the felony violation is three years in state prison.
In determining what sentence to impose, Penal Code section 278.6 lists factors the court should consider:
- (1) The child was exposed to a substantial risk of physical injury or illness.
- (2) The defendant inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child at the time of or during the abduction.
- (3) The defendant harmed or abandoned the child during the abduction.
- (4) The child was taken, enticed away, kept, withheld, or concealed outside the United States.
- (5) The child has not been returned to the lawful custodian.
- (6) The defendant previously abducted or threatened to abduct the child.
- (7) The defendant substantially altered the appearance or the name of the child.
- (8) The defendant denied the child appropriate education during the abduction.
- (9) The length of the abduction.
- (10) The age of the child.
Every case is unique, so it’s impossible to say what you should “expect” to receive in any particular case, but because the sentences can include state prison for years, if you are charged with or under investigation of child abduction under any of these theories, contact me immediately for a consultation. There are defenses and technical aspects to these charges that we need to explore and discuss.