It is not uncommon during acrimonious divorces and child custody proceedings to hear one parent claim the other parent has “abducted our child.” The parent missing the child calls the police, not only hoping to receive assistance in the return of the child, but to also gain an advantage in the pending child custody proceedings. Sometimes, consequently, there are ulterior motives behind the police report and therefore, false accusations often are present.

When both parents have the right of custody over the child, neither parent can violate Penal Code § 278. To be convicted of violating California’s law against child abduction, one must have no right to custody of the child and “maliciously take, entice away, keep, withhold or conceal any child with the intent to detain or conceal that child from a lawful custodian.” One has the right to custody if that person is the parent of the child and not had his or her rights restricted or revoked by a court, or one has the right to custody through at court order.