What is Penal Code § 278.5, Deprivation of Custody?

If one has experienced a divorce and child custody orders, one will certainly be familiar with the issues that surround handing off a child from one parent to another.  One parent can be late to the custody transfer, the child may be sick and unable to get out of bed, or the child may not want to go from one parent to another, leading to the transfer not taking place.

When the failure of a transfer takes place, however, due to a malicious intent to deny the other parent custody rights, this can be a crime, a violation of Penal Code § 278.5.

Section 278.5 provides: “(a) 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 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 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

(b) Nothing contained in this section limits the court’s contempt power.

(c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.”

This offense is a “wobbler,” meaning it can be charged as a misdemeanor or a felony, depending upon the case facts and the criminal history of defendant.  

Imprisonment pursuant to Penal Code § 1170(h), as stated in 278.5, means that custody time will be spent in the county jail unless the person is a registered sex offender, who probably would not be granted custody time anyways.

It is no defense that the child wanted to stay with you, or that the child did not resist or object to staying with you.  

One is not guilty of violating § 278.5 if one’s car breaks down and one cannot drive the child to the child transfer location, or the child becomes sick and must stay in bed.  Such behavior is not malicious.  It is not intentional and done with the intent to prevent a change in custody or prevent a visit.  It is not meant to annoy the other person.

A “lawful custodian” is a person, guardian or entity that has the right to custody of the child.  The “right to custody” is the right to physical care, custody and control of the child according to the law, or because of a court order.

You can be charged with deprivation of custody if the “lawful custodian” whom you are depriving of their rights is a government or nonprofit agency (such as the California Department of Children and Family Services) rather than a parent or other individual.

One also violates Penal Code § 278.5 when one deprives someone else of their right to visitation with a child—even if they don’t have custody.  “Visitation” means the time ordered by a court granting someone access to the child.

It is important to note that child detention charges can be brought against one in California even if that person is not a California resident and the alleged offense did not take place in California.

This can occur if the child in question was a resident of, or present in, California at the time they were “abducted,” the child is later found in California or the lawful custodian or person with a right to visitation was a resident of California when the alleged crime took place.

It is important to note that, if one is convicted of deprivation of custody or visitation rights, one will be required to pay restitution to the district attorney for any costs incurred in locating and returning the child, and to the “victim” for any costs they incurred in locating and recovering the child.  This can easily be hundreds or even thousands of dollars.

In deciding whether to bring the case as a misdemeanor or a felony, the prosecuting agency will consider the facts of the case.  Such facts include, but are not limited to whether:

In closing, we wish to note for the reader that Greg Hill &Associates is not a family law or child custody law firm.  While we do defend those accused of violating Penal Code § 278.5, we do not handle the underlying child custody, divorce or dissolution proceedings.