Policy Text
Field Services Page 1 of 5 07/08 (REV 1/04)
Family Child Abductions
The purpose of this order is to e stablish the procedure to be f ollowed in all complaints
charging family child abductions. I. General
A. When a custody order is in pla ce or when a petition to addre ss custody
has been filed, the Office of the District Attorney can take ac tions
necessary to locate abducted chil dren when their location is un known and
to assist in the enforcement of s tatutes pertaining to family c hild
abductions.
The District Attorney does not handle family disputes as to vis itation; such
disputes need to be referred to private counsel or the family l aw facilitator,
so the party can get the disput e before the family court.
II. Definitions
A. “Right of Custody” – The righ t of custody stems from the bio logical
relationship between mother and ch ild or father and child or ha ving the
physical care, custody, and contro l of a child pursuant to a cu stody order.
B. “Lawful Custodian” – The perso n, guardian or public agency h aving a right
to custody of a child.
C. “Malice” – A wish to vex, annoy or injure another person or intent to do a
wrongful act.
III. Applicable Laws
A. 278 PC – Every person, not having a right to custody, who ma liciously
takes, entices away, keeps, withh olds or conceals any child wit h the intent
to detain or conceal that child from a lawful custodian, shall be punished
by imprisonment in a county jail or in state prison for two, th ree or four
years.
Field Services Page 2 of 5 07/08 (REV 1/04) 1. Points to consider:
a. Violator has no right to custody
(1) Rights may have been termi nated by a court order
(2) Person may have never had a right to custody
2. Requires malice
B. 278.5 PC – Every person who ta kes, entices away, keeps, with holds, or
conceals a child, and maliciously deprives a lawful custodian o f a right of
custody, or a person of a right t o visitation, shall be punishe d by
imprisonment in the county jail or in state prison for sixteen months, or two
or three years, or by fine, or both.
1. Points to consider:
a. Includes every person even if a court order of custody or
visitation has been issued
b. Requires malice
EXCEPTIONS: 278.7 PC states tha t a person, with a right of
custody, is not in viol ation of 278.5 PC if:
(1) With a good faith and reas onable belief that the child,
if left with the other per son, will suffer immediate
bodily injury or emotional harm, takes, keeps, and
etcetera.
- OR -
(2) He/she has been the victim of domestic violence and
with a good faith and reasonab le belief that the child,
if left with the other per son, will suffer immediate
bodily injury or emotional harm, takes, keeps, and
etcetera.
(a) “Emotional harm” includes having a parent who
has committed domestic violence against the parent who is taking, enticing away, and etcetera.
Field Services Page 3 of 5 07/08 (REV 1/04) (3) The abducting person, withi n a reasonable time (10
days) from the taking, and et c., makes a report to the
District Attorney of the county where the child resides at the time of the taking and informs the District Attorney of their curren t address and phone number
and any changes of such duri ng the pendency of the
District Attorney’s investigation;
(a) Within a reasonable ti me (30 days) from the
taking, and etc., commences a custody proceeding in a court of competent jurisdiction.
C. 279 PC – A violation of PC 278 or PC 278.5 by someone who wa s not a
resident of or present in Califor nia at the time o f the offence , is punishable
in this state if any o f the following apply:
1. The child was a resident of o r present in California at the time of the
taking, enticing away, and etcetera.
2. The child is found in California.
3. A lawful custodian or a pers on with a right to visitation is a resident
of California at the time of the taking and etcetera.
D. 279.6(a) PC – A law enforcem ent officer may take a child int o protective
custody under any of the following circumstances:
1. It reasonably appears that a person is likely to conceal a c hild, flee
jurisdiction with the child or by flight or concealment, evade the
authority of the court.
2. No lawful custodian is avail able to take custody of the chil d.
3. There are conflicting custody o rders or conflicting claims t o custody
and the parties cannot agree which party should take custody of the
child.
a. Subsection three (above) allo ws the officer to take the chil d
into protective custody when confronted with orders that
appear to give custody of a child to each of the parents.