BILL ANALYSIS
SENATE RULES COMMITTEE AB 2936
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THIRD READING
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Bill No: AB 2936
Author: Cunneen (R)
Amended: 8/5/96 in Senate
Vote: 21
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SENATE CRIMINAL PROCEDURE COMMITTEE: 6-0, 6/11/96
AYES: Johnson, Kopp, Polanco, Watson, Boatwright, Marks
SENATE JUDICIARY COMMITTEE: 9-0, 7/2/96
AYES: Haynes, Lockyer, O'Connell, Petris, Sher, Solis,
Wright, Leslie, Calderon
SENATE APPROPRIATIONS COMMITTEE: 12-0, 8/13/96
AYES: Johnston, Dills, Hughes, Kelley, Killea, Leonard,
Leslie, Lewis, Mello, Mountjoy, Peace, Polanco
NOT VOTING: Alquist
ASSEMBLY FLOOR: 76-0, 5/16/96 (Passed on Consent)
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SUBJECT: Child abduction
SOURCE: Santa Clara County District Attorney's Office
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DIGEST: This bill would amend various sections of the
Family Code to provide for the return of children who have
been abducted or concealed.
This bill would reorganize and revise the Penal Code
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section relating to child abduction.
ANALYSIS: Existing law, provides, in Chapter 8, for the
location of a missing party or child.
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
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.
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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.
This bill expands this authority to permit a court to order
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.
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.
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
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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
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 "lawful custodian" --
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.
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4.Defines a "lawful custodian" as a person, guardian, or
public agency having a right to custody of a child.
5.Defines a "right to custody" as the right to the physical
care, custody and control of a child pursuant to a
custody order.
6.Defines a "court order" or a "custody order" as a custody
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
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.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT: (Verified 8/12/96)
Santa Clara County District Attorney's Office (source)
California District Attorneys Association
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San Bernardino County Sheriff's Department
Attorney General's Office
ARGUMENTS IN SUPPORT: According to the sponsor, the
Santa Clara County District Attorney's Office (DA),
California is the nation's 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
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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
Family Code.
RJG:sl 8/14/96 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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