Deprivation of Child Custody or Right to Visitation | Penal Code § 278.5

Description

The crime of Deprivation of Child Custody or Right to Visitation can be charged against a person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody. In extreme cases charges may accompany Kidnapping or Child Endangerment. Examples of Deprivation of Child Custody or Right to Visitation include failing to return children to the custodial parent after a summer holiday or a child is placed in a group home and their parent persuades them to sneak out or prevention of a parent from exercising lawful visitation rights.

What does the prosecutor have to prove?

1. Defendant had a right to physical custody or visitation with a child pursuant to an order, judgement or decree of court.
2. The order, judgement, or decree also granted another person, guardian or a public agency a right to custody or visitation with that child.
3. Defendant detained, concealed, took, or enticed away the child with the specific intent to deprive the other person, or agency of his or her right to custody or visitation. [PC 278.5]

Punishment

Felony: 16months/2years/3years
With probation 0-364 days
Misdemeanor: 0-364 days

 

Can this be charged as a felony or a misdemeanor (“wobbler”)?	Yes
Is this charge a strike?	No
Is this charge a “serious felony”	No
Is this charge a “violent felony”	No
Do I have to register as a sex offender if convicted?	May
Do I have to register as a drug offender if convicted?	No
Do I lose my right to own or possess a firearm if convicted?	Yes
Do I lose my right to vote if convicted?	Yes
Am I eligible for a local sentence (PC § 1170(h)) if convicted?	Yes
Am I eligible for PC § 1000 drug diversion if convicted?	No
Am I eligible for Prop. 36 drug diversion if convicted?	No
Am I required to give a DNA sample if convicted?	Yes
Is this charge considered a “crime of moral turpitude” for immigration purposes?	Yes
Is this charge considered a “aggravated felony” for immigration purposes?	May
Is this charge considered a “controlled substance violation” for immigration purposes?	No
Is this charge considered a “domestic violence” for immigration purposes?	Yes
Is this charge considered a “firearm conviction” for immigration purposes?	No