BILL ANALYSIS
SENATE JUDICIARY COMMITTEE A
Charles M. Calderon, Chairman B
1995-96 Regular Session
2
9
3
6
AB 2936
Assemblymember Cunneen
As amended on March 27, 1996
Hearing Date: June 26, 1996
Family Code, Penal Code
MBS:cb
CHILD ABDUCTION
HISTORY
Source: Santa Clara County District Attorneyos Office
Related Pending Legislation: SB 144 (Calderon)
Prior Vote: Senate Criminal Procedure Committee Vote: 6 -
0
Assembly Public Safety Committee Vote: 13 - 0
Assembly Appropriations Committee Vote: 21 -
0
Assembly Floor Vote: 76 - 0
KEY ISSUES
1. SHOULD VARIOUS SECTIONS OF THE FAMILY CODE BE AMENDED TO
PROVIDE FOR THE RETURN OF CHILDREN WHO HAVE BEEN ABDUCTED
OR CONCEALED?
2. SHOULD THE PENAL CODE SECTION RELATING TO CHILD ABDUCTION
BE REORGANIZED AND REVISED, MOST SIGNIFICANTLY TO:
A. ADD A LIST OF AGGRAVATING AND MITIGATING FACTORS
THAT A COURT MUST CONSIDER WHEN SENTENCING A PERSON
FOUND GUILTY OF CHILD ABDUCTION?
B. PROVIDE THE FOLLOWING PUNISHMENTS:
1) FOR AN ABDUCTION FROM A oLAWFUL CUSTODIANo
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-- PUNISHMENT SHALL BE IMPRISONMENT IN A COUNTY
JAIL NOT EXCEEDING ONE YEAR, A FINE NOT EXCEEDING
$1,000 DOLLARS, OR BOTH THAT FINE AND
IMPRISONMENT; OR BY IMPRISONMENT IN A STATE PRISON
FOR TWO, THREE, OR FOUR YEARS, A FINE NOT
EXCEEDING $10,000, OR BOTH THAT FINE AND
IMPRISONMENT?
2) FOR AN ABDUCTION FROM A LAWFUL CUSTODIAN OR
A PERSON WITH A RIGHT TO VISITATION -- PUNISHMENT
SHALL BE THE SAME AS ABOVE, EXCEPT THAT THE
IMPRISONMENT IN A STATE PRISON SHALL BE FOR 16
MONTHS, OR TWO, OR THREE YEARS?
3) IN ADDITION TO A REQUIREMENT THAT A
DEFENDANT REIMBURSE THE DISTRICT ATTORNEY FOR
COSTS REASONABLY INCURRED, A REQUIREMENT TO
REIMBURSE THE VICTIM FOR COSTS REASONABLY INCURRED
IN LOCATING AND RECOVERING THE CHILD?
3. SHOULD THE DEFINITION OF A oRIGHT TO CUSTODYo BE MORE
SPECIFICALLY DEFINED?
4. SHOULD A oREASONABLE TIMEo WITHIN WHICH A PERSON WHO
TAKES, ENTICES AWAY, KEEPS, WITHHOLDS OR CONCEALS A
CHILD, IN VIOLATION OF A COURT ORDER AND CLAIMING
DOMESTIC VIOLENCE IS REQUIRED TO NOTIFY THE DISTRICT
ATTORNEY AND SEEK A COURT ORDER FOR CUSTODY BE DEFINED?
5. SHOULD THE COUNTY IN WHICH THE PERSON WHO TAKES A CHILD,
AS PROVIDED FOR IN COMMENT #4, MUST MAKE A REPORT TO THE
DISTRICT ATTORNEY BE CLARIFIED?
PURPOSE
It is the intent of this bill to remedy parental kidnapping
enforcement problems.
Existing law, provides, in Chapter 8, for the location of a
missing party or child. [Family Code (FC) Sections 3130,
et seq.]
This bill adds FC Section 3135 to specify that upon the
request of the district attorney, the court may issue a
protective custody warrant to secure the recovery of an
unlawfully detained or concealed child. Further, the
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protective warrant shall contain an order that the
arresting agency place the child in protective custody, or
return the child as directed by the court.
Existing law provides, in the Uniform Child Custody
Jurisdiction Act (UCCJA), a procedural scheme for
determining which court has jurisdiction over child custody
where there are conflicting custody orders in different
states. Most significantly, the UCCJA provides that:
1.The state which has jurisdiction is the state in which
the original custody order was entered (e.g., pursuant to
a dissolution decree or paternity action), unless it is
determined that none of the parties or the child
continued to reside in that state and so, another state
is a more appropriate forum. (Original jurisdiction.)
2.If no state has jurisdiction as provided above, then the
state which has been the state of the child's residence
for the past 6 months, is determined to be the child's
home state, and the state with appropriate jurisdiction.
(Home state jurisdiction.)
3.Where a child is in a state that does not have original
or home state jurisdiction, but the protection of that
state's courts are being sought because the child is
currently present in that state and in immediate and
present danger of physical or emotional harm (this
includes having a parent who has been subjected to
domestic violence), that state may exercise emergency
jurisdiction over the child. The period of the exercise
of emergency jurisdiction does not count as the time of
residence of a child and so, does not, without more, give
that state home state jurisdiction. [FC Sections 3400, et
seq.]
This bill adds the fear that a child is in danger of being
abducted or concealed to the bases for establishing
emergency jurisdiction.
Under existing law, the UCCJA also gives a court
jurisdiction to order parties to a custody proceeding, who
are within this state, to appear personally with the child
before the court. [FC Section 3411.]
This bill expands this authority to permit a court to order
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parties, who are not currently within the state, to appear
personally with the child.
Existing law authorizes a law enforcement officer to obtain
d emergency protective order (EPO) where:
1.The person is in immediate and present danger of domestic
violence, based upon the person's allegation of a recent
incident of abuse or threat of abuse.
2.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. [FC Section
6250.]
This bill adds a third basis for obtaining an EPO, where 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 the
jurisdiction, or on an allegation of a recent threat to
abduct the child or flee the jurisdiction.
Existing law provides in the Penal Code for the crime of
child abduction, whether by a parent, relative or a
stranger. [Penal Code Sections 277, et seq.]
This bill reorganizes those Penal Code provisions and
making numerous technical and grammatical changes and some
substantive changes, most significantly as follows:
1.Making the provisions for child abduction the same,
regardless of whether or not the abduction is by a
parent, relative or stranger.
2.Adding a list of aggravating and mitigating factors a
court must consider when determining the sentence of a
person found guilty of child abduction.
a. The aggravating factors are: the child was exposed
to substantial risk of physical injury or illness
during the abduction; the defendant inflicted or
threatened to inflict physical harm on a parent of
lawful custodian of the child or on the child at the
time of the abduction; the child was taken, enticed
away, kept, withheld or concealed outside the Untied
States; the child has not been returned to the lawful
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custodian; the defendant substantially altered the
appearance and name of the child; the defendant denied
the child appropriate education during the abduction;
the length of the abduction; and the age of the child.
b. The mitigating factors are: the defendant returned
the child unharmed and prior to the arrest or issuance
of a warrant for arrest; and the defendant provided
information and assistance leading to the child's safe
return.
3.Providing for punishment of child abduction or
concealment as follows:
a. For an abduction from a olawful custodiano --
punishment shall be imprisonment in a county jail not
exceeding one year, a fine not exceeding $1,000
dollars, or both fine and imprisonment; or by
imprisonment in a state prison for two, three, or four
years, a fine not exceeding $10,000, or both that fine
and imprisonment.
b. For an abduction from a lawful custodian or a
person with a right to visitation -- punishment shall
be the same as above, except that the imprisonment in
a state prison shall be for 16 months, or two, or
three years.
c. In addition to a requirement that a defendant
reimburse the district attorney for costs reasonably
incurred, a requirement to reimburse the victim for
costs reasonably incurred in locating and recovering
the child.
4.Defines a olawful custodiano as a person, guardian, or
public agency having a right to physical custody of a
child.
5.Defines a oright to custodyo as the right to physical
custody of a child pursuant to an order of a court of
competent jurisdiction of any state, or in the absence of
a court order, by operation of law, or pursuant to the
Uniform Parentage Act (Family Code Sections 7600, et
seq.)
6.Defines a ocourt ordero or a ocustody ordero as a custody
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determination or 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.
7.Provides that these sections do not apply to a person
with a right to custody of a child who takes, entices
away, keeps, withholds, or conceals a child:
a. With a good faith and reasonable belief that the
child, if left with the other person will suffer
immediate bodily injury or emotional harm.
b. Who is a victim of domestic violence, and who has a
good faith and reasonable belief that the child will
suffer immediate bodily injury or emotional harm,
which includes having a parent who has committed
domestic violence against the parent who is taking and
concealing the child.
8.Specifies that a person who takes and conceals a child
pursuant to #8 above, must, within a reasonable time,
make a report to the district attorney of the county in
which the child resided before the action; and commence a
custody proceeding in a court of competent jurisdiction
consistent with the federal Kidnapping Prevention Act
(Section 1738A, Title 28, United States Code), and the
UCCJA.
COMMENT
1. Should various sections of the Family Code be amended to
provide for the return of children who have been abducted
or concealed?
According to the sponsor, the Santa Clara County District
Attorney (DA), California is the nationos leader in the
handling of parental kidnapping because of our unique
statutory scheme which mandates the district attorney
become involved in these tragic cases. The DA notes that
other states are looking to California for model
legislation and enforcement in this area.
However, the DA states, there is a need to resolve some
enforcement problems which have arisen and to provide
courts and law enforcement new measures to protect and
recover parentally abducted children by amending the
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Family Code.
Currently the UCCJA permits a person to request a court to
exercise emergency jurisdiction over a child where the
child is suffering from physical or emotional harm. This
statute authorizes state agencies to seek jurisdiction
over a child who is abandoned in the state, and permits
persons fleeing domestic violence to obtain emergency
jurisdiction in a state to which he or she has fled, in
order to remain within that state pending a final
determination of custody and to protect against being
found guilty of child abduction.
When a court exercises emergency jurisdiction, the court
does not take actual jurisdiction from the state that has
original or home state jurisdiction. Rather, it permits
the child to remain temporarily in that state, while the
courts of each state discuss the issues or while the
custody matter is being resolved in the appropriate forum
state.
Thus, for example, a parent fleeing California with a
child because of domestic violence, may seek emergency
jurisdiction in New York. New York will not become the
state with original or home state jurisdiction, but the
parent and child will be permitted to remain in New York,
pending the outcome of the custody dispute in California.
The California court may determine that the fleeing
parent had good reason to flee and may give that parent
sole legal and physical custody, so that that parent may
remain in New York legally. Or the California court may
decide that there was insufficient basis to flee the
state with the Child and order the fleeing parent to
return the child and give custody to the other parent.
Or the California court may order shared parenting and
set a custody schedule, determining which state shall be
the child's primary residence.
It is arguable that abduction of a child by a parent is a
form of physical and/or emotional abuse, but as the
statute specifically provides that having a parent who is
subject to domestic violence qualifies as emotional abuse
of a child, the sponsor believes it is preferable to also
specifically state that having a parent or relative who
has abducted the child also qualifies.
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These provisions are primarily the same as those provided
for in AB 1038 (Vasconcellos), which was vetoed by the
Governor last year. The veto related to the Penal Code
provisions of the bill.
2. Should the Penal Code section relating to child abduction
be reorganized and revised, most significantly to:
A. Add a list of aggravating and mitigating factors
that a court must consider when sentencing a person
found guilty of child abduction?
These provisions give a court the ability to punish more
severely a person who physically harms a child during
an abduction. It also recognizes that, where a parent
or relative abducts a child and either tells the child
derogatory lies about the other parent, or tells the
child the other parent is dead, or substantially
alters the child's physical appearance, or denies the
child appropriate education, these are additional
forms of harm to a child that will take some period of
time to rectify, even if the child is eventually
recovered.
On the other hand, an incentive to cooperation is
provided, in the form of mitigating factors, where a
parent or relative cooperates in the location and
return of a child, or has taken the child because of a
concern regarding domestic violence, or the person
returned the child, unharmed, prior to the issuance of
a warrant or arrest.
B. Provide the following punishments:
1) For an abduction from a olawful custodiano
-- punishment shall be imprisonment in a county
jail not exceeding one year, a fine not exceeding
$1,000 dollars, or both that fine and
imprisonment; or by imprisonment in a state prison
for two, three, or four years, a fine not
exceeding $10,000, or both that fine and
imprisonment?
2) For an abduction from a lawful custodian or
a person with a right to visitation -- punishment
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shall be the same as above, except that the
imprisonment in a state prison shall be for 16
months, or two, or three years?
3) In addition to a requirement that a
defendant reimburse the district attorney for
costs reasonably incurred, a requirement to
reimburse the victim for costs reasonably incurred
in locating and recovering the child?
The Governoros veto of AB 1038 was based on that billos
lowering of the maximum penalty for abduction by a person
without any right to custody or visitation with the
child. This bill rectifies that concern by reinstating
the two, three, or four year penalty provided for in
current law for abductions by a person without any right
to custody or visitation.
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3. Should the definition of a oright to custodyo be more
specifically defined?
The bill makes several references to custody, lawful
custodians and right to physical custody that use
different phraseology, and so, may lead to confusion when
parties and courts are attempting to interpret these
provisions.
For example, in Section 277(b), a ocustody ordero or ocourt
ordero includes an order for custody or visitation.
Section 277(d) provides that a lawful custodian is one
who as a oright to physical custody of a child.o Yet the
definition in Section 277(e) for oright to custodyo does
not include the word ophysicalo but states that it means
the right to physical custody of a child pursuant to a
court order of this state.
It is unclear whether this includes, then, an order for
visitation with a child. Court orders for parenting time
around this state use various terms which are not
necessarily consistent in their meanings. In order to
ensure that all children and parents are treated the
same, the definitions provided for in these sections must
be precise and clear.
SHOULD THIS BILL BE AMENDED TO CLARIFY THESE REFERENCES AND
TO PROVIDE THAT A RIGHT TO CUSTODY MEANS A RIGHT TO
PHYSICAL POSSESSION OF THE CHILD FOR STATED TIMES,
INCLUDING A RIGHT TO SOLE, JOINT, OR SHARED PARENTING
TIME OR TO VISITATION?
4. Should a oreasonable timeo within which a person who
takes, entices away, keeps, withholds or conceals a
child, in violation of a court order and claiming
domestic violence is required to notify the district
attorney and seek a court order for custody be defined?
This bill provides that the person who takes and conceals
a child due to a claimed emergency must report to the
district attorney and commence an action for custody
owithin a reasonable time,o but does not provide any
indication of what that might be.
AB 1038 provided that, for purposes of this section, a
reasonable time within which to make a report to the
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district attorneyos office is at least 10 days, and for
commencing a custody proceeding is at least 30 days.
This definition was provided to ensure that the
appropriate authorities: the court and district
attorney, did not waste time and resources looking for a
child who has been taken and concealed due to a claimed
emergency situation; and to ensure that the matter get
before an appropriate authority as quickly as possible so
as to ensure that the childos best interests are
adequately being looked after.
SHOULD THIS BILL BE AMENDED TO INCLUDE THE DEFINITION OF
oREASONABLE TIMEo PROVIDED FOR IN AB 1038?
5. Should the county in which the person who takes a child,
as provided for in comment #4, must make a report to the
district attorney be clarified?
This bill specifies that the person who takes and conceals
a child due to a claimed emergency must make a report to
the district attorney oof the county where the child
resided before the action.o However, it does not specify
to what oactiono this refers. Does this mean the action
of the concealing person taking the child, the action in
which the court order for custody was issued, the action
by the district attorney to look for the child, or the
action for custody commenced in another jurisdiction?
SHOULD THIS LANGUAGE BE CLARIFIED SO THAT THE REPORT IS
MADE IN THE COUNTY IN WHICH THE COURT HAVING JURISDICTION
OVER THE ISSUE OF CUSTODY IS LOCATED, OR IF NO COURT
ORDER IS EXTANT, THEN IN THE COUNTY IN WHICH THE CHILD
RESIDED PRIOR TO THE TIME OF THE TAKING?
Support: California District Attorneys Association,
San Bernadino County Sheriffos Department,
the Attorney Generalos Office
Opposition: None known
Prior Legislation: None known
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