PENAL CODE SECTION 277-280
PENAL CODE SECTION 277-280
277. The following definitions apply for the purposes of this
chapter:
(a) "Child" means a person under the age of 18 years.
(b) "Court order" or "custody order" means a custody determination
decree, judgment, or order issued by a court of competent
jurisdiction, whether permanent or temporary, initial or modified,
that affects the custody or visitation of a child, issued in the
context of a custody proceeding. An order, once made, shall continue
in effect until it expires, is modified, is rescinded, or terminates
by operation of law.
(c) "Custody proceeding" means a proceeding in which a custody
determination is an issue, including, but not limited to, an action
for dissolution or separation, dependency, guardianship, termination
of parental rights, adoption, paternity, except actions under Section
11350 or 11350.1 of the Welfare and Institutions Code, or protection
from domestic violence proceedings, including an emergency
protective order pursuant to Part 3 (commencing with Section 6240) of
Division 10 of the Family Code.
(d) "Lawful custodian" means a person, guardian, or public agency
having a right to custody of a child.
(e) A "right to custody" means the right to the physical care,
custody, and control of a child pursuant to a custody order as
defined in subdivision (b) or, in the absence of a court order, by
operation of law, or pursuant to the Uniform Parentage Act contained
in Part 3 (commencing with Section 7600) of Division 12 of the Family
Code. Whenever a public agency takes protective custody or
jurisdiction of the care, custody, control, or conduct of a child by
statutory authority or court order, that agency is a lawful custodian
of the child and has a right to physical custody of the child. In
any subsequent placement of the child, the public agency continues to
be a lawful custodian with a right to physical custody of the child
until the public agency's right of custody is terminated by an order
of a court of competent jurisdiction or by operation of law.
(f) In the absence of a court order to the contrary, a parent
loses his or her right to custody of the child to the other parent if
the parent having the right to custody is dead, is unable or refuses
to take the custody, or has abandoned his or her family. A natural
parent whose parental rights have been terminated by court order is
no longer a lawful custodian and no longer has a right to physical
custody.
(g) "Keeps" or "withholds" means retains physical possession of a
child whether or not the child resists or objects.
(h) "Visitation" means the time for access to the child allotted
to any person by court order.
(i) "Person" includes, but is not limited to, a parent or an agent
of a parent.
(j) "Domestic violence" means domestic violence as defined in
Section 6211 of the Family Code.
(k) "Abduct" means take, entice away, keep, withhold, or conceal.
278. 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.
278.5. (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.
278.6. (a) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in aggravation, including, but
not limited to, all of the following:
(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.
(b) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in mitigation, including, but
not limited to, both of the following:
(1) The defendant returned the child unharmed and prior to arrest
or issuance of a warrant for arrest, whichever is first.
(2) The defendant provided information and assistance leading to
the child's safe return.
(c) In addition to any other penalties provided for a violation of
Section 278 or 278.5, a court shall order the defendant to pay
restitution to the district attorney for any costs incurred in
locating and returning the child as provided in Section 3134 of the
Family Code, and to the victim for those expenses and costs
reasonably incurred by, or on behalf of, the victim in locating and
recovering the child. An award made pursuant to this section shall
constitute a final judgment and shall be enforceable as such.
278.7. (a) Section 278.5 does not apply to a person with a right to
custody of a child who, with a good faith and reasonable belief that
the child, if left with the other person, will suffer immediate
bodily injury or emotional harm, takes, entices away, keeps,
withholds, or conceals that child.
(b) Section 278.5 does not apply to a person with a right to
custody of a child who has been a victim of domestic violence who,
with a good faith and reasonable belief that the child, if left with
the other person, will suffer immediate bodily injury or emotional
harm, takes, entices away, keeps, withholds, or conceals that child.
"Emotional harm" includes having a parent who has committed domestic
violence against the parent who is taking, enticing away, keeping,
withholding, or concealing the child.
(c) The person who takes, entices away, keeps, withholds, or
conceals a child shall do all of the following:
(1) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, make a report to the office of
the district attorney of the county where the child resided before
the action. The report shall include the name of the person, the
current address and telephone number of the child and the person, and
the reasons the child was taken, enticed away, kept, withheld, or
concealed.
(2) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, commence a custody proceeding in
a court of competent jurisdiction consistent with the federal
Parental Kidnapping Prevention Act (Section 1738A, Title 28, United
States Code) or the Uniform Child Custody Jurisdiction Act (Part 3
(commencing with Section 3400) of Division 8 of the Family Code).
(3) Inform the district attorney's office of any change of address
or telephone number of the person and the child.
(d) For the purposes of this article, a reasonable time within
which to make a report to the district attorney's office is at least
10 days and a reasonable time to commence a custody proceeding is at
least 30 days. This section shall not preclude a person from making a
report to the district attorney's office or commencing a custody
proceeding earlier than those specified times.
(e) The address and telephone number of the person and the child
provided pursuant to this section shall remain confidential unless
released pursuant to state law or by a court order that contains
appropriate safeguards to ensure the safety of the person and the
child.
279. A violation of Section 278 or 278.5 by a person who was not a
resident of, or present in, this state at the time of the alleged
offense is punishable in this state, whether the intent to commit the
offense is formed within or outside of this state, if any of the
following apply:
(a) The child was a resident of, or present in, this state at the
time the child was taken, enticed away, kept, withheld, or concealed.
(b) The child thereafter is found in this state.
(c) A lawful custodian or a person with a right to visitation is a
resident of this state at the time the child was taken, enticed
away, kept, withheld, or concealed.
279.1. The offenses enumerated in Sections 278 and 278.5 are
continuous in nature, and continue for as long as the minor child is
concealed or detained.
279.5. When a person is arrested for an alleged violation of
Section 278 or 278.5, the court, in setting bail, shall take into
consideration whether the child has been returned to the lawful
custodian, and if not, shall consider whether there is an increased
risk that the child may not be returned, or the defendant may flee
the jurisdiction, or, by flight or concealment, evade the authority
of the court.
279.6. (a) A law enforcement officer may take a child into
protective custody under any of the following circumstances:
(1) It reasonably appears to the officer that a person is likely
to conceal the child, flee the jurisdiction with the child, or, by
flight or concealment, evade the authority of the court.
(2) There is no lawful custodian available to take custody of the
child.
(3) There are conflicting custody orders or conflicting claims to
custody and the parties cannot agree which party should take custody
of the child.
(4) The child is an abducted child.
(b) When a law enforcement officer takes a child into protective
custody pursuant to this section, the officer shall do one of the
following:
(1) Release the child to the lawful custodian of the child, unless
it reasonably appears that the release would cause the child to be
endangered, abducted, or removed from the jurisdiction.
(2) Obtain an emergency protective order pursuant to Part 3
(commencing with Section 6240) of Division 10 of the Family Code
ordering placement of the child with an interim custodian who agrees
in writing to accept interim custody.
(3) Release the child to the social services agency responsible
for arranging shelter or foster care.
(4) Return the child as ordered by a court of competent
jurisdiction.
(c) Upon the arrest of a person for a violation of Section 278 or
278.5, a law enforcement officer shall take possession of an abducted
child who is found in the company of, or under the control of, the
arrested person and deliver the child as directed in subdivision (b).
(d) Notwithstanding any other law, when a person is arrested for
an alleged violation of Section 278 or 278.5, the court shall, at the
time of the arraignment or thereafter, order that the child shall be
returned to the lawful custodian by or on a specific date, or that
the person show cause on that date why the child has not been
returned as ordered. If conflicting custodial orders exist within
this state, or between this state and a foreign state, the court
shall set a hearing within five court days to determine which court
has jurisdiction under the laws of this state and determine which
state has subject matter jurisdiction to issue a custodial order
under the laws of this state, the Uniform Child Custody Jurisdiction
Act (Part 3 (commencing with Section 3400) of Division 8 of the
Family Code), or federal law, if applicable. At the conclusion of the
hearing, or if the child has not been returned as ordered by the
court at the time of arraignment, the court shall enter an order as
to which custody order is valid and is to be enforced. If the child
has not been returned at the conclusion of the hearing, the court
shall set a date within a reasonable time by which the child shall be
returned to the lawful custodian, and order the defendant to comply
by this date, or to show cause on that date why he or she has not
returned the child as directed. The court shall only enforce its
order, or any subsequent orders for the return of the child, under
subdivision (a) of Section 1219 of the Code of Civil Procedure, to
ensure that the child is promptly placed with the lawful custodian.
An order adverse to either the prosecution or defense is reviewable
by a writ of mandate or prohibition addressed to the appropriate
court.
280. Every person who willfully causes or permits the removal or
concealment of any child in violation of Section 8713, 8803, or 8910
of the Family Code shall be punished as follows:
(a) By imprisonment in a county jail for not more than one year if
the child is concealed within the county in which the adoption
proceeding is pending or in which the child has been placed for
adoption, or is removed from that county to a place within this
state.
(b) By imprisonment pursuant to subdivision (h) of Section 1170,
or by imprisonment in a county jail for not more than one year, if
the child is removed from that county to a place outside of this
state.
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