By Michael Phillips | People’s Law Review
I. Introduction
In December 2025, the Colorado Court of Appeals issued a unanimous decision in People v. Wilson, holding that violations of a single child custody order may be prosecuted as separate criminal offenses for each child affected. The ruling resolved, as a matter of first impression in Colorado, that the allowable “unit of prosecution” under Colorado Revised Statutes § 18-3-304 is per child, not per court order.
While widely described as a significant expansion of prosecutorial authority in Colorado, the decision aligns closely with a doctrinal approach that has long existed in California. California appellate courts have, for decades, interpreted custody-interference and child-abduction statutes as victim-centered, permitting separate counts for each child deprived of lawful custody—even where the conduct arises from a single act or order.
This article situates People v. Wilson within the broader jurisprudence governing multiplicity and double jeopardy, examines California’s preexisting framework, and analyzes the constitutional boundaries of per-child prosecution in custody-related offenses.
II. The Colorado Decision: People v. Wilson
In People v. Wilson, the defendant was convicted of four felony counts of violating a custody order after fleeing with four children subject to a single temporary custody order transferring custody to the county. On appeal, the defendant argued that multiple convictions violated double jeopardy principles because only one court order was breached.
The Colorado Court of Appeals rejected this argument. Focusing on the statutory language of § 18-3-304, the court emphasized repeated references to “a child” and concluded that the legislature intended to criminalize the deprivation of custody with respect to each individual child, rather than the violation of an order as an abstract act. The court therefore held that the unit of prosecution is each child affected, permitting multiple convictions arising from a single order.
Applying standard multiplicity analysis, the court determined that because the legislature unambiguously defined the protected interest as individual children, multiple counts did not constitute multiple punishments for the same offense.
III. California’s Preexisting Approach to Custody Interference
A. Statutory Framework
California Penal Code sections 278 and 278.5 criminalize the taking, concealing, or retaining of a child from a lawful custodian. As in Colorado’s statute, the operative language is singular and child-focused.
California courts have consistently interpreted these provisions as protecting individual children, not merely enforcing custody orders or vindicating parental authority. As a result, each child deprived of lawful custody constitutes a distinct victim for purposes of prosecution.
B. California Appellate Authority Upholding Per-Child Prosecution
California appellate courts have repeatedly upheld multiple criminal counts in custody-interference and child-abduction cases where a defendant’s conduct deprived more than one child of lawful custody, even when the conduct occurred during a single incident.
In People v. Sanchez, the defendant parent took multiple children in violation of custody orders and argued that only a single offense could be charged because the conduct constituted one continuous act. The Court of Appeal rejected that argument, holding that Penal Code section 278 protects individual children, not a unitary custodial interest. The court explained that “each child taken or concealed constitutes a separate offense” because “the gravamen of the crime is the deprivation of custody of the child.”¹
Similarly, in People v. Castaneda, the court upheld multiple counts arising from a single course of conduct affecting multiple victims, reaffirming the principle that “where multiple victims are involved, a defendant may be punished separately for each victim even though the acts were part of an indivisible course of conduct.”² Although not limited to custody offenses, Castaneda reflects California’s broader victim-centered approach to unit-of-prosecution analysis.
The California Supreme Court has endorsed this framework in People v. Reed, emphasizing that the allowable unit of prosecution is determined by legislative intent and that “victim-centered statutes permit multiple convictions without violating double jeopardy protections.”³ When a statute defines the protected interest as the individual victim—as Penal Code sections 278 and 278.5 do with respect to “a child”—courts presume that each victimized child constitutes a distinct offense absent contrary legislative direction.
Taken together, these cases demonstrate that California’s acceptance of per-child prosecution in custody-interference cases is not novel or incidental, but a settled application of long-standing multiplicity doctrine.
IV. Unit of Prosecution and Double Jeopardy Doctrine
A. General Principles
Both California and Colorado follow the principle that the legislature defines the allowable unit of prosecution. In evaluating multiplicity challenges, courts examine statutory language, legislative intent, and the nature of the protected interest.
When a statute is framed around individual victims rather than discrete acts or transactions, courts routinely permit separate convictions for each victim harmed, even if the defendant’s conduct constitutes a single course of action.
B. California Supreme Court Guidance
The California Supreme Court has repeatedly emphasized that victim-centered statutes support multiple convictions without violating double jeopardy protections. Where legislative intent indicates that each victim represents a separate harm, courts decline to merge counts arising from a single act.
However, California courts also recognize limits. Where statutes define offenses in terms of conduct rather than victims, or where multiple counts are based on alternative means of committing a single offense, merger may be required. The inquiry remains statute-specific and fact-dependent.
V. Practical Implications of Per-Child Charging
The per-child unit of prosecution materially expands prosecutorial charging discretion in cases involving multiple children. In custody-interference contexts, this can significantly increase sentencing exposure and plea-bargaining leverage, particularly where violations arise during emotionally charged family or dependency proceedings.
At the same time, the doctrine does not eliminate traditional safeguards. Prosecutors must still establish specific intent, lawful custody, proper notice of the order, and actual deprivation. Defendants may continue to raise challenges based on ambiguity of orders, lack of intent, or improper service.
Thus, while People v. Wilson clarifies prosecutorial authority, it does not dispense with constitutional or statutory limits governing custody-related crimes.
VI. California Dependency Proceedings and Criminal Spillover (Welf. & Inst. Code § 300)
AAlthough prosecutions under Penal Code sections 278 and 278.5 are criminal, many arise from conduct occurring within dependency proceedings governed by California Welfare and Institutions Code section 300. These proceedings authorize juvenile courts to assert jurisdiction over children alleged to be abused, neglected, or otherwise at risk, often resulting in emergency removal orders transferring custody to county child welfare agencies.
Dependency proceedings are civil in nature and operate under expedited timelines, frequently involving ex parte orders and limited initial evidentiary showings. Nevertheless, California courts have treated juvenile court removal orders as conferring “lawful custody” for purposes of criminal enforcement, provided the order was validly issued and in effect at the time of the alleged interference.
When a dependency order encompasses multiple children, California’s per-child unit-of-prosecution doctrine permits prosecutors to file separate felony counts per child, even where the alleged interference consists of a single episode of conduct. Each count may independently expose a defendant to felony sentencing under Penal Code section 278.5, with trial courts retaining discretion to impose concurrent or consecutive sentences under Penal Code section 669, subject to aggravating factors.
This civil-to-criminal spillover raises recurring legal issues:
- Notice and clarity: Whether the parent had adequate notice of the dependency order’s scope and immediate effect.
- Intent: Whether the defendant acted with the specific intent to deprive a lawful custodian, as opposed to responding to confusion, fear, or emergent circumstances.
- Order validity: Whether jurisdictional defects, improper service, or later vacatur of the dependency order undermine criminal liability.
Practitioners should also be aware of potential federal exposure in cross-border cases. When a parent removes a child from the United States or retains a child abroad in violation of custody rights, the International Parental Kidnapping Crime Act (18 U.S.C. § 1204) may apply, compounding state-level criminal consequences.
While dependency findings do not themselves establish criminal guilt, California courts have permitted criminal prosecutions to proceed in parallel or subsequently, applying standard criminal law principles to conduct originating in dependency proceedings. The per-child unit-of-prosecution framework thus operates with full force at the intersection of juvenile and criminal law.
VII. Conclusion
The Colorado Court of Appeals’ decision in People v. Wilson does not chart new doctrinal territory so much as it confirms a victim-centered approach to custody-interference offenses long embedded in California law. By defining the unit of prosecution per child rather than per court order, both jurisdictions have affirmed that individual children constitute the protected legal interest for purposes of criminal enforcement.
As custody disputes and dependency proceedings increasingly intersect with criminal law, the practical reach of per-child charging will continue to expand. Whether legislatures should recalibrate this balance—particularly in emergency dependency contexts—remains an open policy question. For now, courts have made clear that multiplicity doctrine will follow the child, not the paperwork.
Abstract (Law-Review Style)
This article examines the unit of prosecution in child custody interference offenses through the lens of the Colorado Court of Appeals’ decision in People v. Wilson (2025). The court held that violations of a single custody order may be prosecuted as separate offenses for each child affected, based on statutory language protecting “a child” as the relevant victim. Situating the decision within broader multiplicity and double jeopardy doctrine, the article demonstrates that California courts have long applied a similar per-child framework under Penal Code sections 278 and 278.5. The analysis compares statutory interpretation, victim-centered reasoning, and constitutional limits on multiple punishments, concluding that Wilson aligns Colorado with an established California approach while raising ongoing questions about prosecutorial discretion in family-related criminal cases.
Practitioner Summary (Companion)
Issue:
Whether a single custody or removal order involving multiple children permits multiple criminal counts without violating double jeopardy.
Holding (Colorado):
In People v. Wilson (2025), the Colorado Court of Appeals held that violations of a custody order may be charged per child, not per order.
California Status:
California has long followed the same approach. Under Penal Code §§ 278 and 278.5, courts treat each child as a separate victim, permitting multiple counts when multiple children are deprived of lawful custody—even if the conduct arises from a single act or order.
Key Doctrine:
- Unit of prosecution is determined by legislative intent.
- Victim-centered statutes allow per-victim (per-child) charging.
- Double jeopardy is not violated where each count corresponds to a distinct child.
Dependency Spillover:
- Criminal charges frequently arise from conduct occurring during dependency proceedings under Welf. & Inst. Code § 300.
- Juvenile court custody or removal orders generally satisfy the “lawful custody” element for criminal statutes.
- Multiple children under one dependency order may support multiple criminal counts.
Limits and Defenses Remain:
- Prosecutors must still prove specific intent, actual deprivation, and valid, effective orders.
- Defects in notice, service, or order clarity remain fertile grounds for challenge.
- Merger may still apply where statutory language or facts do not support multiple units.
Practice Tip:
When representing parents in dependency-adjacent criminal cases, counsel should assess early whether per-child charging is statutorily supported and whether the underlying juvenile court orders are sufficiently clear and lawful to sustain criminal liability.
Legislative History Note: California Penal Code §§ 278 and 278.5
California Penal Code sections 278 and 278.5 were enacted as part of a broader legislative effort in the late 1970s and early 1980s to address child abduction in the context of custody disputes, particularly those involving parents or custodians acting outside lawful authority. Prior to their enactment, California relied primarily on general kidnapping statutes, which were widely viewed as ill-suited for custody-related scenarios involving parents rather than strangers.
Section 278 was added in 1979 (Stats. 1979, ch. 1357) to criminalize the taking or withholding of a child from a lawful custodian without right, regardless of whether the conduct fit traditional kidnapping elements. The Legislature’s focus was on protecting the custodial stability and welfare of children, rather than merely enforcing court orders or punishing parental disobedience. Legislative committee analyses emphasized the disruptive and harmful effects of custody interference on children, even when physical harm was absent.
Section 278.5 was later enacted to close perceived gaps in enforcement, extending criminal liability to parents and others who abduct, conceal, or retain a child with intent to deprive a lawful custodian of custody or visitation rights. Amendments throughout the 1980s and 1990s refined intent requirements and affirmative defenses but consistently retained the statute’s child-centered framing, referring to the taking or concealment of “a child” rather than to violations of an order in the abstract.
Notably, legislative materials do not suggest an intent to limit prosecution to a single count per incident or per order. Instead, the statutory language and accompanying analyses reflect a concern with the individualized harm suffered by each child deprived of lawful custody, a focus that later informed appellate courts’ interpretation of the allowable unit of prosecution. This legislative backdrop supports California courts’ long-standing conclusion that sections 278 and 278.5 are victim-centered statutes permitting per-child charging where multiple children are affected.
Footnote-Style Citations
- People v. Wilson, No. 22CA1977 (Colo. Ct. App. Dec. 24, 2025).
- Colo. Rev. Stat. § 18-3-304 (2024).
- Cal. Penal Code §§ 278, 278.5.
- See, e.g., People v. Sanchez, 113 Cal. App. 4th 325 (2003).
- People v. Castaneda, 57 Cal. App. 4th 1612 (1997).
- People v. Reed, 38 Cal. 4th 1224 (2006).
- See generally Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (unit-of-prosecution analysis).
- U.S. Const. amend. V; Cal. Const. art. I, § 15; Colo. Const. art. II, § 18.
- Stats. 1979, ch. 1357 (adding Penal Code § 278).
- See Sen. Comm. on Judiciary, Analysis of Assem. Bill No. 1900 (1979–1980 Reg. Sess.).
- See also Cal. Law Revision Comm’n, Recommendation Relating to Child Stealing and Custody Interference (late 1970s).
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