Abducting a child is a crime in California; we all understand that, but here is a more-difficult question:
“Can a parent, whose parental rights have not been terminated, be guilty of abducting her/his own child, even if there be no child custody orders in effect?”
The answer to this question may be critical to decision-making in the early stages of a child custody dispute.
Pursuant to Penal Code §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 pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.”
For Penal Code §278 to apply, the abductor has to
1. Not have a right to custody;
2. Act out of malice;
3. Have the intent to detain or conceal the child;
4. From a lawful custodian.
Every one of the above elements has to be proven beyond a reasonable doubt to achieve a conviction (Penal Code §1096).
Parents generally have a right to custody (Penal Code §277(e) & Family Code §3010(a)), which means that when one parent abduct a child from another, Penal Code §278 does not apply, because the abductor has a right of custody (see Element #1 above). To address the issue of parental abduction, the California Legislature passed a broader law, which is Penal Code §278.5:
“(a) EVERY person [including a parent with a right of custody] who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, 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 pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.”
For Penal Code §278.5 to apply, the abductor has to
1. Act out of malice;
2. Deprive a lawful custodian of a right of custody (or a person of a right of visitation).
This means that even before the first child custody order, if one parent keep a child from another, that parent can be found guilty of abduction of that parent’s own child.
If you feel this has happened to you, the first step is to contact law-enforcement. The next is to file a lawsuit with the California Superior Court, which could be a marital action (if the parents be married) or a parentage action.
The filing of a marital action (divorce, legal separation, or nullity) yields automatic temporary restraining orders per Family Code §2040(a)(1) (shown on Form FL-110), which have the effect of:
“[r]estraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.”
The filing of a parentage action (e.g. a complaint to establish paternity) yields automatic temporary restraining orders per Family Code §7700 (shown on Form FL-210), which have the effect of:
“restraining all parties, without the prior written consent of the other party or an order of the court, from removing from the state any minor child for whom the proceeding seeks to establish a parent and child relationship.”
The above automatic orders are mandatory to be issued by the Superior Court Clerk upon the filing of the marital or parentage action (California Rule of Court 5.50). Pursuant to Family Code §233(a), they are immediately in effect for the person filing the action, and enforceable against the respondent (the other party) when one of the following occurs:
“[U]pon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent…”
Pursuant to Family Code §233(c):
“A willful and knowing violation of the order included in the summons by removing a child from the state without the written consent of the other party or an order of the court is punishable as provided in Section 278.5 of the Penal Code.”
Pursuant to Family Code §233(b), the temporary order is “enforceable in any place in this state…” The automatic temporary order is not effective out of state. In fact, if a parent have taken a child or children out of the state prior to the filing of the marital or parentage action, the automatic temporary order will not have the effect of forcing that parent to come back with the child(ren) (Sarah B. v. Floyd B., (2008) 159 Cal.App.4th 938, 943-945), even if the out-of-state parent be the one to have filed the action in California.
The only way to secure the return of the child(ren) from out of state would be through law-enforcement action for violation of Penal Code §278.5 (unlikely once a marital or parentage action be filed), or through the obtaining of a court order. Such court orders can often be obtained on an emergency basis (ex parte), and can be quite dramatic, for example, the non-abducting parent can apply for temporary sole physical custody (Family Code §240 et seq.) and seek the assistance of the District Attorney pursuant to Family Code §3130, to “take all actions necessary to locate the party and the child and to procure compliance with the order to appear with the child for purposes of adjudication of custody.” Having said that, the truth is that even with an order of assistance from the District Attorney, enforcement of recovery of children across state lines is heavily reliant on the discretion of District Attorney, as well as law enforcement in the other state. On the other hand, if the abducting parent voluntarily return to California with the children, that parent cannot legally leave the state with the child(ren) again for so long as the automatic temporary restraining orders be in place.
Pursuant to Family Code §233(a), the automatic temporary order remains in effect:
“until the final judgment is entered or the petition is dismissed [which is also a final judgment], or until further order of the court.”
The automatic temporary order is effective even against short “temporary” or “interim” trips out of the state. Without permission of the other parent, no such trips are permitted (Andrew V. v. Superior Court, (2015) 234 Cal.App.4th 103, 107-109).
Furthermore, even if the Court make an order dissolving the automatic temporary order, such order is stayed (suspended) by operation of law for 30 days pursuant to Code of Civil Procedure 917.7, which gives time to seek relief from the Appellate Court. This stay pursuant to Code of Civil Procedure 917.7 is effective against any order permitting out-of-state travel with child(ren), even if “temporary” or “interim” (Andrew V. v. Superior Court, (2015) 234 Cal.App.4th 103, 107-109).
The take-away from all this is that even before the first court proceeding, California Law has a number of safeguards in place to address the issue of parental child abduction. Awareness of this legal framework can help inform early decisions in a child custody dispute. Navigating these complex laws can require expert legal assistance. It is strongly recommended that parents finding themselves in child custody disputes seek legal advice at the earliest opportunity.
- Written by: Ethan J. Marcus, CFLS