BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB 2936
                                                         Page 1

Date of Hearing:  April 16, 1996
Counsel:          Jennifer P. Anderson


                ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                      Paula L. Boland, Chair

          AB 2936 (Cunneen) - As Amended:  March 27, 1996



Majority vote.

 SUMMARY:  Enacts the Parental Kidnapping Prevention Act.   
Specifically,  this  bill:

1) Authorizes the court, upon request of the district attorney, to  
   issue a protective order to secure the recovery of an abducted  
   child.  The request of the district attorney must include a  
   written declaration that the warrant for the child is necessary  
   in order for the district attorney to perform his or her  
   statutory duties to take all actions necessary to locate a  
   child for purposes of adjudicating custody and enforcing  
   custody or visitation orders.

2) Consolidates two child abduction offenses so that every person  
   who abducts a child from a lawful custodian or person having  
   visitation rights and maliciously deprives that other person of  
   his or her right to physical custody or visitation shall be  
   punishable by imprisonment in a county jail for not more than  
   one year, a fine not exceeding $1,000, or both, or by  
   imprisonment in the state prison for 16 months, two or three  
   years, a fine not exceeding $10,000, or both.

3) Provides that every person, not having a right to custody, who  
   abducts a child with the intent to detain or conceal that child  
   from a lawful custodian shall be punished by imprisonment in a  
   county jail for not more than one year, a fine not exceeding  
   $1,000, or both, or by imprisonment in the state prison for  
   two, three, four years, a fine not exceeding $10,000, or both. 

4) Enumerates several aggravating factors the court must consider  
   when sentencing someone under the above provisions, including:

    a)  The child was exposed to a substantial risk of physical  
       injury or illness;

    b)  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;

    c)  The defendant harmed or abandoned the child during the  
       abduction;

    d)  The child was taken, enticed away, kept, withheld, or  
       concealed outside the United States; 







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    e)  The child has not been returned to the lawful custodian;

    f)  The defendant previously abducted or threatened to abduct  
       the child; 

    g)  The defendant substantially altered the appearance or the  
       name of the child;
  
    h)  The defendant denied the child appropriate education  
       during the abduction;

    i)  The length of the abduction; and 

    j)  The age of the child. 
 
5) Provides that the court must consider the following mitigating  
   factors when sentencing a defendant under the above child  
   abduction provisions:

    a)  The defendant returned the child unharmed and prior to  
       arrest or issuance of a warrant for arrest, whichever is  
       first; and

    b)  The defendant provided information and assistance leading  
       to the child's safe return. 

6) Authorizes a peace officer to take a minor child into  
   protective custody under any of the following circumstances:

    a)  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.

    b)  There is no lawful custodian available to take custody of  
       the child.

    c)  There are conflicting custody orders or conflicting claims  
       to custody and the parties cannot agree which party should  
       take custody of the child.

    d)  The child is an abducted child.

7) Makes various clarifying amendments to relevant child abduction  
   provisions.

 FISCAL EFFECT:  Unknown

 EXISTING LAW: 

1) Provides that in the absence of a court order determining  
   rights of custody or visitation to a minor child, every person  
   having a right of custody of the child who maliciously takes,  
   detains, conceals, or entices away that child within or outside  
   the state, without good cause, and with the intent to deprive  







                                                          AB 2936
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   the custody right to that child, shall be punished by  
   imprisonment in the county jail for a period of not more than  
   one year, a fine of $1,000, or both, or imprisonment in the  
   state prison for 16 months, two or three years, a fine of not  
   more than $10,000, or both.  (Penal Code Section 277.)

2) Every person, not having a right of custody, who commits the  
   above offense with the intent to detain or conceal that child  
   from a person, guardian, or public agency having the lawful  
   charge of the child shall be punished by imprisonment in the  
   state prison for two, three, or four years, a fine 
of not more than $10,000, or both, or imprisonment in a county  
jail for not more than one year, a fine of not more than $1,000,  
or both.  (Penal Code Section 278.)

3) Provides that every person who shares with another person or a  
   public agency a right to physical custody of or visitation with  
   a child pursuant to an order, judgment, or decree of any court  
   and who abducts the child with the intent to deprive the other  
   person of that right to custody or visitation, shall be  
   punished by imprisonment in the state prison for 16 months, two  
   or three years, a fine not exceeding $10,000, or by  
   imprisonment in a county jail not exceeding one year, a fine  
   not exceeding $1,000, or both.  (Penal Code Section 278.5.)

4) Authorizes a peace officer investigating a report of a  
   violation of one of the above provisions to take a minor child  
   into protective custody if it appears to the officer that any  
   person unlawfully will flee the jurisdictional territory with  
   the minor child.  (Penal Code Section 279.)

 BACKGROUND:  

1)  According to the author, "California is the nation's leader in  
   the handling of parental kidnapping because of our unique  
   statutory scheme which mandates district attorney involvement  
   in these tragic cases.  Because we have recognized the  
   seriousness of parental kidnapping and the devastation it  
   wreaks on the children involved, the other states look to  
   California for model legislation and enforcement.

   This bill remedies parental kidnapping enforcement problems  
   which have developed after appellate court decisions.  It also  
   amends certain Family Code sections to give the courts and law  
   enforcement new measures to protect and recover  
   parentally-abducted children."

2) Existing law provides that certain child abduction offenses do  
   not apply in situations when a child is abducted to prevent  
   immediate bodily injury or emotional harm to the child.  Nor  
   does it apply to domestic violence victims who flee with a  
   child to escape domestic violence.  

   This bill will retain these provisions.

3) Existing law authorizes a peace officer investigating a report  







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   of child abduction to take a minor child into protective  
   custody if it appears to the officer that any person unlawfully  
   will flee the jurisdictional territory with the minor child.

   This bill expands a peace officer's ability to take a child  
   into protective custody by removing the requirement that the  
   officer be investigating a report of child abduction.  In  
   addition, a peace officer will be able to take a child into  
   protective custody under the following circumstances:  (a) 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; (b)  
   There is no lawful custodian available to take custody of the  
   child; (c) There are conflicting custody orders or conflicting  
   claims to custody and the parties cannot agree which party  
   should take custody of the child; or (d) The child is an  
   abducted child. 

4)  Prior Legislation.  AB 1038 (Vasconcellos), of the 1995-1996  
   Legislative Sessions, consolidated and clarified various child  
   abduction offenses and 
made similar changes to a peace officer's authority to take a  
child into protective custody.  AB 1038 would have also reduced  
the maximum penalty for child abduction committed by a person who  
does not have a right to custody of the child and removed any  
distinction between child abduction offenses committed by persons  
who do not have custody rights from those committed by persons who  
do have custody rights.  AB 1038 was vetoed by the Governor.

5)  Governor's veto.  The Governor stated in his veto message for  
   AB 1038 (Vasconcellos):  

   "[This bill]'s primary goals of simplification and  
   clarification are achieved at the expense of proportional  
   sentencing, traditionally providing higher penalties for more  
   egregious conduct.  Current law provides for a maximum of four  
   years in state prison for any person who, without a right of  
   custody, abducts a child with the intent of concealing that  
   child from one having lawful custody.  Lesser penalties apply  
   to offending parents or others who have some legal right to  
   custody of the child abducted or concealed.

   [AB 1038] would lower the maximum penalty for child abduction  
   to three years while eliminating the distinction between  
   offending parents and those with no custodial rights.  

   The Significant positive changes contemplated by AB 1038 should  
   be achieved without diminishing existing penalties."

   This bill addresses the Governor's concerns by maintaining  
   existing penalties for those who commit child abduction without  
   having a right to custody of the child, and retains existing  
   provisions which impose greater punishment for child abduction  
   offenses committed by persons who do not have a right to  
   custody of the child.








                                                          AB 2936
                                                         Page 5

 ARGUMENTS IN SUPPORT:  Proponents of this bill argue that it will  
clarify existing child abduction provisions, while addressing the  
concerns expressed by the Governor in his veto message of AB 1038.

 ARGUMENTS IN OPPOSITION:  None on file

 REGISTERED SUPPORT/OPPOSITION:

 Support

California Department of Justice
California District Attorneys Association

 Opposition

None on file

 Analysis prepared by:  Jennifer P. Anderson / apubs / 445-3268