A parent is not guilty under Penal Code section 270 merely because a child-support payment is overdue. For this criminal charge, the prosecution must prove that the accused was the parent of a minor child, failed to furnish necessary food, clothing, shelter, medical attendance or other remedial care, and did so willfully and without lawful excuse. Those are the elements in the Judicial Council’s jury instruction 2981. A civil support order and the child’s day-to-day care may supply evidence, but neither replaces the criminal test.
What must be checked in a section 270 accusation?
| Question | Why it matters |
|---|---|
| Who was the child’s parent, and how old was the child? | Parentage and minority are part of the charge. A final parentage or nonparentage ruling may be relevant evidence under Penal Code section 270e. |
| What necessity was allegedly missing, and when? | The allegation must concern necessary clothing, food, shelter, medical attendance or other remedial care for the child. Records of what care was actually provided during the charged period matter more than a general claim that one parent paid too little. |
| Was the omission willful and without lawful excuse? | Financial inability can matter, but it is not established simply by being unemployed. The jury instruction describes a possible excuse when a parent, through no fault of their own, cannot earn enough and lacks other income or assets; unreasonable spending or failure to diligently seek work may defeat that explanation. |
The court must consider all income, including social insurance benefits and gifts, when determining ability to support the child (section 270). A lawyer can compare that evidence with expenses, assets, work efforts and the child’s actual needs during the alleged period. The law does not make the other parent’s custody, or another person’s decision to provide care, an automatic excuse. It also applies whether the parents married or divorced and regardless of a child-support provision in a divorce decree. If medical care is disputed, the statute has a narrow rule treating prayer-based treatment by a duly accredited practitioner of a recognized church or religious denomination as “other remedial care”; the exact facts would matter.
When does the final-parentage branch change the possible punishment?
Section 270 has two punishment branches. The basic offense is a misdemeanor punishable by up to one year in county jail, a fine up to $2,000, or both. The other branch applies only if a competent court finally adjudicated the accused to be the child’s parent in a civil or criminal case, the accused had notice of that adjudication, and the accused then willfully omitted the necessities without lawful excuse. That branch permits up to one year in county jail or a state-prison term of one year and one day, a fine up to $2,000, or both.
The order, proof of notice and alleged omission dates therefore need to be read together. Notice of a support demand is not automatically notice of a final parentage adjudication. The final-parentage branch does not dispense with proof of a willful omission without lawful excuse.
Does an alleged omission prove it was willful?
No. Section 270 calls abandonment, desertion or failure to provide necessities prima facie evidence of willfulness and lack of lawful excuse. That wording does not require a jury to infer those facts or shift the prosecution’s burden to the parent. Jury instruction 2981 treats the inference as permissive where appropriate and warns against giving it when contrary evidence supports a different finding. The prosecution must still prove the charged elements beyond a reasonable doubt.
Keep the charging document, any parentage judgment and notice records, support and custody orders, and records of the child’s care, income, benefits, assets and employment efforts for the charged period. If the papers also allege child endangerment, Penal Code section 273a has a separate test that should be assessed count by count. The Law Offices of David S. Chesley can discuss the criminal accusation and the records that bear on it at (800) 755-5174.