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
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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.
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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