Custodial interference — when one parent takes or retains a child in violation of a custody order — is one of the most alarming situations a parent can face. California law addresses custodial interference through both family court enforcement mechanisms and criminal prosecution under Penal Code section 278. Understanding the difference between a civil custody violation and criminal parental kidnapping, and knowing what steps to take immediately, is critical.
What Is Custodial Interference in California?
Custodial interference in California occurs when a parent, without legal authorization, takes, entices away, keeps, or conceals a child from the parent who has lawful custody. At the civil family law level, custodial interference is a violation of the existing custody order — enforceable through contempt proceedings, emergency modification of custody, and sanctions under Family Code section 271.
At the criminal level, Penal Code section 278 makes it a crime for a person who does not have a right to custody to maliciously take, entice away, keep, withhold, or conceal a child with the intent to detain or conceal the child from a lawful custodian. This is commonly called parental kidnapping when it involves a parent who takes the child in violation of a court order.
Penal Code 278 and Parental Kidnapping
California Penal Code section 278 applies when someone without right to custody takes or withholds a child. Penal Code section 278.5 applies when a person with some legal right to custody (such as a parent with visitation) maliciously deprives the other parent of their custody or visitation rights — for example, by refusing to return the child after a scheduled visit, relocating with the child without court permission, or hiding the child from the other parent.
Violation of PC 278.5 can be charged as a misdemeanor or felony depending on the circumstances. A parent who takes a child across state lines or international borders in violation of a custody order faces additional federal charges under the International Parental Kidnapping Crime Act (IPKCA) and the Parental Kidnapping Prevention Act (PKPA).
What to Do When the Other Parent Violates the Custody Order
If the other parent fails to return your child or takes the child in violation of your custody order, your first steps should be: contact law enforcement and provide them with a certified copy of your custody order; file an emergency ex parte motion in family court requesting immediate return of the child and modification of custody; and contact an experienced family law attorney immediately. Time is critical — the longer a child is away, the more difficult recovery can become, particularly if the other parent crosses state or international borders.
If there is reason to believe the child has been taken across state lines, contact the National Center for Missing and Exploited Children (NCMEC) and the FBI in addition to local law enforcement. California courts can also issue Hague Convention applications for international cases.
Furubotten Law, APC handles emergency custody enforcement, custodial interference proceedings, and contempt actions throughout Orange County and Riverside County. If your child has been taken in violation of a custody order, call (714) 795-3862 immediately for emergency consultation.