I dissent.
To reach their conclusion the majority assume there was a reconciliation, and that such reconciliation would automatically “cancel” the previous custody order of the court. They misread the testimony and the facts impliedly found by the jury, and they are in error on the law.
Although defendant claimed he and his ex-wife had reconciled, she—the mother of the children—admitted cohabitation and an attempt at reconciling, but testified the reconciliation failed. At most there was an attempted reconciliation. As the Chief Justice wrote in In re Marriage of Modnick (1983) 33 Cal.3d 897, 912 [191 Cal.Rptr. 629, 663 P.2d 187], “Mere cohabitation after entry of the interlocutory decree, even for a long period of time, does not establish that the parties have reconciled as a matter of law.” In short, it takes two to reconcile.
The record discloses that after the interlocutory decree was entered, defendant moved into his ex-wife’s home and for nearly a year they tried to adjust their marital differences. He was away from this temporarily reunited home for a considerable period of that time because of family illness in Colorado. Ultimately the attempted reconciliation failed, and the ex-wife filed for a final decree of divorce. In her application for the final decree she swore under oath that the parties had not reconciled.
*865At trial, the following testimony was offered by the ex-wife:
“Q. It’s basically a request to have the interlocutory become final; is that correct? A. Yes.
“Q. And you signed that on July 14, 1980? A. Right.
“Q. Your attorney prepared the paper, I assume? A. Yes, he did.
“Q. On July 14, 1980, had Gene Howard left your house? A. Yes, he was in Colorado.
“Q. You were split up? A. Yes.
“Q. You had not reconciled? A. No.
“Q. You certainly had tried before, as you told us before? A. Yeah.”
The jury heard the defendant’s and the ex-wife’s versions of the attempted reconciliation. The contentions of both parties were presented in full, and apparently the jury accepted the latter’s depiction of the events. This is understandable, in view of the deception and stealth with which defendant abducted the children and secreted them from their mother. Had he genuinely believed that there was a reconciliation rendering the interlocutory decree invalid and thus that his lawful right to custody was equal to the mother’s, it is inconceivable that he would have resorted to such deceit. To compound his egregious conduct, defendant thereafter refused to permit the children to communicate with their mother, even when they specifically asked to do so.
Here are the relevant portions of defendant’s own testimony on cross-examination:
“Q. That’s true, right, you were thinking about the [interlocutory] order? A. Yes, I was.
“Q. Thank you. When you went to pick up the children on August 5th, 1980, did you tell Mrs. Brown [the baby-sitter] that you’d have them back in one to two hours? A. Yes, I did.
“Q. Was that a lie? A. Yes, it was.
“Q. You in fact did not return the children; is that correct? A. No, I did not.
*866“Q. You in fact took the children to Colorado? A. Yes, I did.”
When defendant was questioned further, he admitted his son Ryan asked to call his mother so that he could at least talk to her on the phone.
“Q. Did you let him talk to his mother? A. No, I did not.
“Q. Did you let him talk to his mother at all in 33 days? A. No, I did not.”
In light of the record and the conduct it revealed, there is little doubt the jury did not buy defendant’s story that he believed there had been a reconciliation that wiped out the previous order awarding custody to the mother. Rather, the record discloses a defendant intentionally thwarting a lawful order of the court.
The crime described in Penal Code section 278.5 has three elements: (1) a custody decree; (2) an intentional taking of a child in violation of that decree; and (3) knowledge of the decree. This defendant—and the Chief Justice in her concurring opinion—now propose a fourth element: a subjective belief that the custody decree is valid.
In my opinion, this additional dimension would make child-stealing prosecutions extremely difficult, regardless of how egregious the offense, and it would encourage self-help rather than resort to legal process. Thereafter, rare indeed would be the defendant in a child-stealing case who did not assert his subjective belief that a prior custody award was invalid and hence the abduction of the child was permissible.
Section 278.5, subdivision (a), at the time of this offense provided: “Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian, and every person who has custody of a child pursuant to an order, judgment or decree of any court which grants another person rights to custody or visitation of such child, and who detains or conceals such child with the intent to deprive the other person of such right to custody or visitation shall be punished by imprisonment . . . "1 The purpose of this statute was to aid California courts in protecting children from extralegal hazards of custody disputes. (See generally Foster & Freed, Child Snatching and Cus*867todial Fights: The Case for the Uniform Child Custody Jurisdiction Act (1977) 28 Hastings L.J. 1011, 1017; Revue of Selected 1976 California Legislation (1977) 8 Pacific L.J. 315, 317-318.) This purpose is achieved by encouraging those parents who are dissatisfied with custody or visitation provisions under an existing court order to seek judicial clarification or modification of their rights, rather than to employ self-help measures such as kidnaping or concealing the child from the other parent or custodian. (People v. Lortz (1982) 137 Cal.App.3d 363, 368 [187 Cal.Rptr. 89].)
This defendant sought neither clarification nor modification of the custody order. Nor did he take any steps to determine whether the custody order remained in effect. That there has been a reconciliation may not be claimed unilaterally. As declared in Modnick, supra, 33 Cal.3d at page 911, the burden of proof rests with the party asserting the reconciliation. A contention that there has been a genuine reconciliation should be asserted in court, in proceedings either to set aside the interlocutory decree or to resist entry of a final decree. This defendant took neither step. Instead, he now claims he formed his own legal conclusion as to the order’s validity and as to his own rights thereunder. He then absconded with the children and concealed them from both their mother and the district attorney’s investigator. This is precisely the type of conduct that section 278.5 was enacted to deter.
While defendant clearly has ignored the spirit of section 278.5, he nevertheless relies on this section as requiring a specific intent to deprive a person of legal custody of a child. Thus, he contends that his asserted mistake as to the continuing validity of the custody order should constitute a defense. He further argues that it was reasonable for him to believe that the attempted reconciliation with his former wife annulled both the interlocutory decree and the custody order. He concludes that because he did not believe the custody order was valid, he could not have had a specific intent to deprive his former wife of legal custody. His. only intent, he asserts, was to exercise exclusive control over his children which, in the absence of a court order, he had a common law right to do. (Wilborn v. Superior Court (1959) 51 Cal.2d 828, 830-831 [337 P.2d 65] [in the absence of a custody order, a parent does not commit the crime of kidnaping by taking exclusive possession of a child].)
Section 278.5, both originally and as amended, describes two separate offenses, the first prohibiting a person without custody of a child from taking, retaining or concealing the child in a manner which would violate the terms of a custody decree, and the second prohibiting a person with custody of a child from detaining or concealing the child with the intent to deprive the other person of such right to custody or visitation. Obviously, the Legislature intended to differentiate between persons having legal custody of *868the children involved and those who do not, requiring proof of a specific intent to deprive only with respect to persons previously awarded legal custody. The reason for this distinction appears to reflect a legislative willingness to give a benefit of the doubt to persons previously awarded custody of children by requiring a showing of specific intent to deprive the other parent or custodian of his or her rights. Thus, parties like this defendant, who do not have legal custody of the children, fall within the first part of section 278.5 and may be convicted of violating it without a showing of specific intent.
Indeed, if the Legislature had intended to require specific intent as an element of child stealing in all cases, it is doubtful that the separate parts of section 278.5 would have been enacted. The term “every person” in the first part of the statute would have sufficed to include both those without and those with custody rights; the addition would be mere surplusage. The more logical interpretation is that the Legislature intended to require no showing of specific intent in cases involving strangers or other persons lacking a claim of custody, and to require a showing of specific intent only in those cases involving custodians.
By its terms, then, section 278.5 is violated if there is an order regarding custody rights, an intentional taking, retention or concealment of a child, an act violating the custody order, and the act is committed with knowledge of the existence of the custody order.
The foregoing elements were fully satisfied here. First, a court order regarding custody and visitation rights existed in the form of the interlocutory decree of dissolution that granted the wife custody and defined defendant’s visitation rights. This order was incorporated into the final decree of dissolution and defendant does not contend otherwise. Although the couple attempted a reconciliation, it ultimately failed and defendant has cited no persuasive authority showing that the custody provisions of the interlocutory decree were vitiated under these circumstances. Second, defendant admitted that he intentionally took, retained and concealed his children from their mother. Third, his act violated the custody order. Finally, defendant admitted that he knew of the interlocutory order which was incorporated into the final decree.
Defendant’s claimed erroneous assumption regarding the order’s continued validity was immaterial. (People v. Snyder (1982) 32 Cal.3d 590, 593 [186 Cal.Rptr. 485, 652 Cal.Rptr. 42].) He could readily have sought legal advice on the matter and returned to court seeking adjudication of the status of the custody order. Instead, and contrary to both the letter and spirit of section 278.5, defendant used unlawful self-help measures. His actions are *869not excused merely because they are assertedly based on an incorrect legal conclusion. Indeed his stealth and deception in abducting and concealing the children cast doubt on any genuine belief in legal rights.
Although a mistake of law is a defense to some specific intent crimes (see People v. Stewart (1976) 16 Cal.3d 133, 139 [127 Cal.Rptr. 117, 544 P.2d 1317]; 1 Witkin, Cal. Crimes (1963) §§ 149-150, and cases cited), the statute at issue required only the intent to take, retain or conceal a child from a person awarded custody pursuant to court order. Such an intent was established here. Defendant’s subjective doubts regarding the validity of that order do not negate a finding of such an intent.
I would affirm the judgment.
Section 278.5, subdivision (a), was amended in 1983. It now contains a specific reference to causing a child to be transported out of the state.