BILL NUMBER: AB 2936 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Cunneen
FEBRUARY 23, 1996
An act to amend Sections 3411, 6240, 6250, 6251, 6252, and 6253
of, and to add Section 3135 to, the Family Code, and to amend Section
868.5 of, and to repeal and add Chapter 4 (commencing with Section
277) of Title 9 of Part 1 of, the Penal Code, relating to child
abduction.
LEGISLATIVE COUNSEL'S DIGEST
AB 2936, as introduced, Cunneen. Child abduction.
(1) Existing law makes each of the following a crime:
(a) A person who has a right to physical custody of, or visitation
with, a child pursuant to a court order, judgment, or decree that
grants another person, guardian, or public agency the same right,
detains, conceals, takes, or entices away the child with the intent
to deprive the other person of that right.
(b) A person who, in the absence of such a court order, has a
right to custody of a child maliciously detains, conceals, takes, or
entices away the child, without good cause, and with the intent to
deprive the custody right of another person or public agency.
(c) A person who does not have a right to custody of a child
maliciously detains, conceals, takes, or entices away the child, with
the intent to detain or conceal the child from a person, guardian,
or public agency having the lawful charge of the child.
This bill instead would make each of the following a crime:
(A) A person who does not have a right to custody of a child
maliciously takes, entices away, keeps, withholds, or conceals a
child with the intent to detain or conceal the child from a lawful
custodian.
(B) A person takes, entices away, keeps, withholds, or conceals a
child from a lawful custodian or person having visitation rights, as
defined, and maliciously deprives the other of his or her right to
physical custody or visitation. By changing the definition of a
crime, the bill would impose a state-mandated local program.
(2) Existing law authorizes a peace officer to take a child into
protective custody if it appears that a person unlawfully will flee
the jurisdiction with the child. A child who has been detained or
concealed must be returned to the person, guardian, or public agency
having lawful charge of the child, to the court, or to the probation
department, as appropriate.
This bill additionally would authorize a peace officer to take a
child into protective custody if it appears that a person will
conceal a child or, by flight or concealment, evade the authority of
the court, if there is no lawful custodian available to take custody
of the child, if there are conflicting custody orders or claims
regarding the child, or if the child is an abducted child. The bill
also would authorize a peace officer who takes a child into
protective custody to obtain an emergency protective order ordering
placement of the child with an interim custodian or to release the
child to a social services agency and would provide that the officer
may return the child to the lawful custodian, unless it appears that
this placement would cause the child to be endangered, concealed, or
removed from the jurisdiction.
(3) Existing law authorizes a court to issue emergency protective
orders in specified situations.
This bill additionally would permit a court to issue an emergency
protective order if a child is in danger of being abducted by a
parent or relative and would authorize a court to issue a protective
custody warrant to secure the recovery, or appearance in court, of an
unlawfully detained or concealed child.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3135 is added to the Family Code, to read:
3135. (a) Upon request of the district attorney, the court may
issue a protective custody warrant to secure the recovery of an
unlawfully detained or concealed child. The request by the district
attorney shall include a written declaration under penalty of perjury
that a warrant for the child is necessary in order for the district
attorney to perform the duties described in Sections 3130 and 3131.
The protective custody warrant for the child shall contain an order
that the arresting agency shall place the child in protective
custody, or return the child as directed by the court. The
protective custody warrant may be served in any county in the same
manner as a warrant of arrest and may be served at any time of the
day or night.
(b) Upon a declaration of the district attorney that the child has
been recovered or that the warrant is otherwise no linger required,
the court may dismiss the warrant without further court proceedings.
SEC. 2. Section 3411 of the Family Code is amended to read:
3411. (a) The court may order any party to the proceeding who is
in within or without this state to
appear personally before the court. If that party has physical
custody of the child, the court may order that the party
he or she appear personally with the child. If
the party who is ordered to appear with the child cannot be served or
fails to obey the order, or it appears the order will be
ineffective, the court may issue a warrant of arrest against the
party and a protective custody warrant for the child, to
secure the party's or the child's appearance with
the child or both, before the court. The protective
custody warrant for the child shall contain an order that the
arresting agency shall place the child in protective custody, or
return the child as directed by the court. The protective custody
warrant may be served in any county in the same manner as a warrant
of arrest and may be served at any time of the day or night .
(b) If a party to the proceeding whose presence is desired by the
court is outside this state with or without the child the court may
order that the notice given under Section 3405 include a statement
directing that party to appear personally with or without the child
and declaring stating that failure to
appear may result in a decision adverse to that party and the
issuance of a warrant pursuant to subdivision (a) .
(c) If a party to the proceeding who is outside this state is
directed to appear under subdivision (b) or desires to appear
personally before the court with or without the child, the court may
require another party to pay to the clerk of the court travel and
other necessary expenses of the party so appearing and of the child
if this is just and proper under the circumstances.
SEC. 3. Section 6240 of the Family Code is amended to read:
6240. As used in this part:
(a) "Judicial officer" means a judge, commissioner, or referee
designated under Section 6241.
(b) "Law enforcement officer" means one of the following officers
who requests or enforces an emergency protective order under this
part:
(1) A police officer.
(2) A sheriff's officer.
(3) A peace officer of the California Highway Patrol.
(4) A peace officer of the California State Police.
(5) A peace officer of the University of California Police
Department.
(6) A peace officer of the California State University and College
Police Departments.
(7) A peace officer of the Department of Parks and Recreation, as
defined in subdivision (g) of Section 830.2 of the Penal Code.
(8) A housing authority patrol officer, as defined in subdivision
(d) of Section 830.31 of the Penal Code.
(9) A peace officer for a district attorney, as defined in Section
830.1 or 830.35 of the Penal Code.
(10) A parole officer, probation officer, or deputy probation
officer, as defined in Section 830.5 of the Penal Code.
(c) "Abduct" means take, entice away, keep, withhold, or conceal.
SEC. 4. Section 6250 of the Family Code is amended to read:
6250. A judicial officer may issue an ex parte emergency
protective order where a law enforcement officer asserts reasonable
grounds to believe either or both any
of the following:
(a) That a person is in immediate and present danger of domestic
violence, based on the person's allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought.
(b) That a child is in immediate and present danger of abuse by a
family or household member, based on an allegation of a recent
incident of abuse or threat of abuse by the family or household
member.
(c) That a child is in immediate and present danger of being
abducted by a parent or relative, based on a reasonable belief that a
person has an intent to abduct the child or flee with the child from
the jurisdiction or based on an allegation of a recent threat to
abduct the child or flee with the child from the jurisdiction.
SEC. 5. Section 6251 of the Family Code is amended to read:
6251. An emergency protective order may be issued only if the
judicial officer finds both of the following:
(a) That reasonable grounds have been asserted to believe that an
immediate and present danger of domestic violence exists or that a
child is in immediate and present danger of abuse or abduction
.
(b) That an emergency protective order is necessary to prevent the
occurrence or recurrence of domestic violence or
, child abuse , or child abduction .
SEC. 6. Section 6252 of the Family Code is amended to read:
6252. An emergency protective order may include any of the
following specific orders, as appropriate:
(a) A protective order, as defined in Section 6218.
(b) An order determining the temporary care and control of any
minor child of the endangered person and the person against whom the
order is sought.
(c) An order authorized in Section 213.5 of the Welfare and
Institutions Code, including provisions placing the temporary care
and control of the endangered child and any other minor children in
the family or household with the parent or guardian of the endangered
child who is not a restrained party.
(d) An order determining the temporary care and control of any
minor child who is in danger of being abducted.
SEC. 7. Section 6253 of the Family Code is amended to read:
6253. An emergency protective order shall include all of the
following:
(a) A statement of the grounds asserted for the order.
(b) The date and time the order expires.
(c) The address of the superior court for the district or county
in which the endangered person or child in danger of being
abducted resides.
(d) The following statements, which shall be printed in English
and Spanish:
(1) "To the Protected Person: This order will last only until the
date and time noted above. If you wish to seek continuing
protection, you will have to apply for an order from the court, at
the address noted above. You may seek the advice of an attorney as
to any matter connected with your application for any future court
orders. The attorney should be consulted promptly so that the
attorney may assist you in making your application."
(2) "To the Restrained Person: This order will last until the
date and time noted above. The protected party may, however, obtain
a more permanent restraining order from the court. You may seek the
advice of an attorney as to any matter connected with the
application. The attorney should be consulted promptly so that the
attorney may assist you in responding to the application."
(e) In the case of an endangered child, the following statement,
which shall be printed in English and Spanish: "This order will last
only until the date and time noted above. You may apply for a more
permanent restraining order under Section 213.5 of the Welfare and
Institutions Code from the court at the address noted above. You may
seek the advice of an attorney in connection with the application
for a more permanent restraining order."
(f) In the case of a child in danger of being abducted, the
following statement, which shall be printed in English and Spanish:
"This order will last only until the date and time noted above. You
may apply for a child custody order from the court, at the address
noted above. You may seek the advice of an attorney as to any matter
connected with the application. The attorney should be consulted
promptly so that the attorney may assist you in responding to the
application."
SEC. 8. Chapter 4 (commencing with Section 277) of Title 9 of Part
1 of the Penal Code is repealed.
SEC. 9. Chapter 4 (commencing with Section 277) is added to Title
9 of Part 1 of the Penal Code, to read:
CHAPTER 4. CHILD ABDUCTION
277. The following definitions apply for the purposes of this
chapter:
(a) "Child" means a person under the age of 18 years.
(b) "Court order" or "custody order" means a custody determination
decree, judgment, or order issued by a court of competent
jurisdiction, whether permanent or temporary, initial or modified,
that affects the custody or visitation of a child, issued in the
context of a custody proceeding. An order, once made, shall continue
in effect until it expires, is modified, is rescinded, or terminates
by operation of law.
(c) "Custody proceeding" includes proceedings in which a custody
determination is an issue, including, but not limited to, an action
for divorce, separation, paternity, except actions under Section
11350 or 11350.1 of the Welfare and Institutions Code, neglect,
abuse, dependency, wardship, guardianship, termination of parental
rights, adoption, or protection from domestic violence proceedings,
including an emergency protective order pursuant to Part 3
(commencing with Section 6240) of Division 10 of the Family Code.
(d) "Lawful custodian" means a person, guardian, or public agency
having a right to physical custody of a child.
(e) A "right to custody" means the right to physical custody of
the child. In the absence of a court order to the contrary, a parent
loses his or her right to custody of the child to the other parent
if the parent having the right to custody is dead, is unable or
refuses to take the custody, or has abandoned his or her family.
(f) A "right to physical custody" is the right to physical
possession of a child by an order of a court of competent
jurisdiction of any state and may include an order of sole physical
custody, joint or shared physical custody, or, in the absence of a
court order, pursuant to the Uniform Parentage Act contained in Part
3 (commencing with Section 7600) of Division 12 of the Family Code or
by operation of law. Whenever a public agency takes protective
custody or jurisdiction of the care, custody, control, or conduct of
a child by statutory authority or court order, that agency is a
lawful custodian of that child and has a right to physical custody of
that child. In any subsequent placement of the child, the public
agency continues to be a lawful custodian with a right to physical
custody of that child until the public agency's right of custody is
terminated by an order of a court of competent jurisdiction or by
operation of law. A natural parent whose parental rights have been
terminated by court order is no longer a lawful custodian and no
longer has a right to physical custody.
(g) "Keeps" or "withholds" means retains physical possession of a
child whether or not the child resists or objects.
(h) "Visitation" means the time for access to the child allotted
to any person by court order.
(i) "Person" includes, but is not limited to, a parent, agent of a
parent, or person acting as a parent.
(j) "Domestic violence" means domestic violence as defined in
Section 6211 of the Family Code.
(k) "Abduct" means take, entice away, keep, withhold, or conceal.
278. Every person, not having a right to custody, who maliciously
takes, entices away, keeps, withholds, or conceals any child with
the intent to detain or conceal that child from a lawful custodian
shall be punished by imprisonment in a county jail not exceeding one
year, a fine not exceeding one thousand dollars ($1,000), or both
that fine and imprisonment, or by imprisonment in the state prison
for two, three, or four years, a fine not exceeding ten thousand
dollars ($10,000), or both that fine and imprisonment.
278.5. (a) A person shall not take, entice away, keep, withhold,
or conceal a child from a lawful custodian or person having
visitation rights and maliciously deprive the other of his or her
right to physical custody or visitation. A violation of this section
is punishable by imprisonment in a county jail not exceeding one
year, a fine not exceeding one thousand dollars ($1,000), or both
that fine and imprisonment, or by imprisonment in the state prison
for 16 months, or two or three years, a fine not exceeding ten
thousand dollars ($10,000), or both that fine and imprisonment.
(b) Nothing contained in this section limits the court's contempt
power.
(c) A custody order obtained subsequent to the commission of an
offense under this section does not constitute a defense to a crime
charged under this section.
278.6. (a) Section 278.5 does not apply to a person with a right
to custody of a child who, with a good faith and reasonable belief
that the child, if left with the other person, will suffer immediate
bodily injury or emotional harm, takes, entices away, keeps,
withholds, or conceals that child. Section 278.5 does not apply to a
person with a right to custody of a child who has been a victim of
domestic violence who, with a good faith and reasonable belief that
the child, if left with the other person, will suffer immediate
bodily injury or emotional harm, takes, entices away, keeps,
withholds, or conceals that child. "Emotional harm" includes having
a parent who has committed domestic violence against the parent who
is taking, enticing away, keeping, withholding, or concealing the
child. The person who takes, entices away, keeps, withholds, or
conceals a child shall do both of the following:
(1) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, make a report to the office of
the district attorney of the county where the child resided before
the action. The report shall include the name of the person, the
current address and telephone number of the child and the person, and
the reasons the child was taken, enticed away, kept, withheld, or
concealed.
(2) Within a reasonable time from the taking, enticing away,
keeping, withholding, or concealing, commence a custody proceeding in
a court of competent jurisdiction consistent with the federal
Parental Kidnapping Prevention Act (Section 1738A, Title 28, United
States Code) or the Uniform Child Custody Jurisdiction Act (Part 3
(commencing with Section 3400) of Division 8 of the Family Code).
(b) The address and telephone number of the person and the child
provided pursuant to this section shall remain confidential unless
released pursuant to state law or by a court order that contains
appropriate safeguards to ensure the safety of the person and the
child.
278.7. (a) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in aggravation, including,
but not limited to, all of the following:
(1) The child was exposed to a substantial risk of physical injury
or illness.
(2) The defendant inflicted or threatened to inflict physical harm
on a parent or lawful custodian of the child or on the child at the
time of or during the abduction.
(3) The defendant harmed or abandoned the child during the
abduction.
(4) The child was taken, enticed away, kept, withheld, or
concealed outside the United States.
(5) The child has not been returned to the lawful custodian.
(6) The defendant previously abducted or threatened to abduct the
child.
(7) The defendant substantially altered the appearance or the name
of the child.
(8) The defendant denied the child appropriate education during
the abduction.
(9) The length of the abduction.
(10) The age of the child.
(b) At the sentencing hearing following a conviction for a
violation of Section 278 or 278.5, or both, the court shall consider
any relevant factors and circumstances in mitigation, including, but
not limited to, both of the following:
(1) The defendant returned the child unharmed and prior to arrest
or issuance of a warrant for arrest, whichever is first.
(2) The defendant provided information and assistance leading to
the child's safe return.
(c) In addition to any other penalties provided for a violation of
Section 278 or 278.5, a court shall order the defendant to pay
restitution for any reasonable expenses incurred by any person,
organization, or governmental entity in locating and securing the
return of the child. An award made pursuant to this section shall
constitute a final judgment and shall be enforceable as such.
279. A violation of Section 278 or 278.5 by a person who was not
a resident of, or present in, this state at the time of the alleged
offense is punishable in this state, whether the intent to commit the
offense is formed within or outside of this state, if any of the
following apply:
(a) The child was a resident of, or present in, this state at the
time the child was taken, enticed away, kept, withheld, or concealed.
(b) The child thereafter is found in this state.
(c) A lawful custodian or a person with a right to visitation is a
resident of this state at the time the child was taken, enticed
away, kept, withheld, or concealed.
279.1. The offenses enumerated in Sections 278 and 278.5 are
continuous in nature, and continue for as long as the minor child is
concealed or detained.
279.5. When a person is arrested for an alleged violation of
Section 278 or 278.5, the court, in setting bail, shall take into
consideration whether the child has been returned to the lawful
custodian, and if not, shall consider whether there is an increased
risk that the child may not be returned, or the defendant may flee
the jurisdiction, or, by flight or concealment, evade the authority
of the court.
279.6. (a) A law enforcement officer may take a child into
protective custody under any of the following circumstances:
(1) It reasonably appears to the officer that a person is likely
to conceal the child, flee the jurisdiction with the child, or, by
flight or concealment, evade the authority of the court.
(2) There is no lawful custodian available to take custody of the
child.
(3) There are conflicting custody orders or conflicting claims to
custody and the parties cannot agree which party should take custody
of the child.
(4) The child is an abducted child.
(b) When a law enforcement officer takes a child into protective
custody pursuant to this section, the officer shall do one of the
following:
(1) Release the child to the lawful custodian.
(2) Obtain an emergency protective order pursuant to Part 3
(commencing with Section 6240) of Division 10 of the Family Code
ordering placement of the child with an interim custodian who agrees
in writing to accept interim custody.
(3) Release the child to the social services agency responsible
for arranging shelter or foster care.
(4) Return the child as ordered by a court of competent
jurisdiction.
(c) A law enforcement officer who recovers an abducted child shall
return the child to the lawful custodian of the child unless it
reasonably appears that the return would cause the child to be
endangered, abducted, or removed from the jurisdiction, in which case
the officer shall take the child into protective custody pursuant to
this section. Upon the arrest of a person for a violation of
Section 278 or 278.5, a law enforcement officer shall take possession
of an abducted child who is found in the company of, or under the
control of, the arrested person and deliver the child as directed in
subdivision (b).
(d) Notwithstanding any other law, when a person is arrested for
an alleged violation of Section 278 or 278.5, the court shall, at the
time of the arraignment or thereafter, order that the child shall be
returned to the lawful custodian, and the court shall specify the
date by which the child shall be returned. If conflicting custodial
orders exist within this state, or between this state and a foreign
state, the court shall set a hearing within five court days to
determine which court has jurisdiction under the laws of this state
and determine which state has subject matter jurisdiction to issue a
custodial order under the laws of this state, the Uniform Child
Custody Jurisdiction Act (Part 3 (commencing with Section 3400) of
Division 8 of the Family Code), or federal law, if applicable. At
the conclusion of the hearing, or if the child has not been returned
as ordered by the court at the time of arraignment, the court shall
enter an order as to which custody order is valid and is to be
enforced. If the child has not been returned at the conclusion of
the hearing, or if the child has not been returned as ordered by the
court at the time of arraignment, the court shall set a date within a
reasonable time by which the child shall be returned to the lawful
custodian, and order the defendant to comply by this date, or to show
cause on that date why he or she has not returned the child as
directed. The court shall only enforce its order, or any subsequent
orders for the return of the child, under subdivision (a) of Section
1219 of the Code of Civil Procedure, to ensure that the child is
promptly placed with the lawful custodian. An order adverse to
either the prosecution or defense is reviewable by a writ of mandate
or prohibition addressed to the appropriate court.
280. Every person who willfully causes or permits the removal or
concealment of any child in violation of Section 8713, 8803, or 8910
of the Family Code shall be punished as follows:
(a) By imprisonment in a county jail for not more than one year if
the child is concealed within the county in which the adoption
proceeding is pending or in which the child has been placed for
adoption, or is removed from that county to a place within this
state.
(b) By imprisonment in the state prison, or by imprisonment in a
county jail for not more than one year, if the child is removed from
that county to a place outside of this state.
SEC. 10. Section 868.5 of the Penal Code is amended to read:
868.5. (a) Notwithstanding any other law, a prosecuting witness
in a case involving a violation of Section 187, 203, 205, 207, 211,
215, 220, 240, 242, 243.4, 245, 261, 262, 273a, 273d, 273.5, 273.6,
277, 278, 278.5, 285, 286, 288, 288a,
288.5, 289, or 647.6, or former Section 647a, or a
violation of subdivision (1) of Section 314, shall be entitled, for
support, to the attendance of up to two persons of his or her own
choosing, one of whom may be a witness, at the preliminary hearing
and at the trial, or at a juvenile court proceeding, during the
testimony of the prosecuting witness. Only one of those support
persons may accompany the witness to the witness stand, although the
other may remain in the courtroom during the witness' testimony. The
person or persons so chosen shall not be a person described in
Section 1070 of the Evidence Code unless the person or persons are
related to the prosecuting witness as a parent, guardian, or sibling
and do not make notes during the hearing or proceeding.
(b) If the person or persons so chosen are also prosecuting
witnesses, the prosecution shall present evidence that the person's
attendance is both desired by the prosecuting witness for support and
will be helpful to the prosecuting witness. Upon that showing, the
court shall grant the request unless information presented by the
defendant or noticed by the court establishes that the support person'
s attendance during the testimony of the prosecuting witness would
pose a substantial risk of influencing or affecting the content of
that testimony. In the case of a juvenile court proceeding, the
judge shall inform the support person or persons that juvenile court
proceedings are confidential and may not be discussed with anyone not
in attendance at the proceedings. In all cases, the judge shall
admonish the support person or persons to not prompt, sway, or
influence the witness in any way. Nothing in this section shall
preclude a court from exercising its discretion to remove a person
from the courtroom whom it believes is prompting, swaying, or
influencing the witness.
(c) The testimony of the person or persons so chosen who are also
prosecuting witnesses shall be presented before the testimony of the
prosecuting witness. The prosecuting witness shall be excluded from
the courtroom during that testimony. Whenever the evidence given by
that person or those persons would be subject to exclusion because it
has been given before the corpus delicti has been established, the
evidence shall be admitted subject to the court's or the defendant's
motion to strike that evidence from the record if the corpus delicti
is not later established by the testimony of the prosecuting witness.
SEC. 11. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.