San Diego: 2013: An Introduction to Child Abduction

In San Diego, unfortunately, many children are abducted as part of a family law case. Child abduction prevention advocacy is so important to all parents in San Diego including those who are divorced or legally separated or not married such as in a paternity case. A child abduction can be by a spouse, relative or stranger. Unfortunately, during an acrimonious divorce, and proceedings relating to child custody, one sometimes hears one parent accuse the other of having “abducted their child”. The accusing parent calls in the San Diego Police Department or the San Diego District Attorney Child Abduction Unit or seeking assistance in the San Diego Superior Court in returning the child but also to score a lead in the ongoing legal separation, paternity or divorce proceedings. So often an accusation of child custody and a police report is not merely what it seems on the face of it, but there are times when the parent has ulterior motives.

In the state of California, child abduction is covered under California Penal Code Section 278. This briefly refers to any person who does not have custodial rights who takes away or entices and holds a child with intent to keep it away from the legal custodian.

However, when both parents have a custodial right over a child, PC 278 cannot be violated by either of them. In order to be convicted under this section pertaining to child abduction in California, the person at fault must have no legal claim to the custody of the child and must take or entice the child with malicious intent to conceal the child from its legal custodian. Every parent has custodial rights unless the court has restricted or revoked his/her rights, or the other parent has been awarded custodial rights through a court order. This can be referred to as “sole legal custody” or an order in which one parent has all the custodial rights. This can also be a violation of the court order such as when there is a court ordered parenting plan and {for example} the order is not to remove the child from San Diego County but one parent does and does not return. This is why a clear cut and unambiguous court order for the custody and visitation is so crucial.

A few definitions which apply in PC 278 help in better understanding a charge. A “child” under this section refers to a person below the age of eighteen. “Maliciously” pertains to the level of intent which is to annoy, vex, of injure. “Withholds” or “keeps” means retaining the child physically, regardless of whether the child objects or resists. Quite often the child might be far too young to fully appreciate what is happening. “To entice” refers to luring, leading astray through trickery or deceit of attracting a child away. “Detaining” refers to delaying, hindering, or slowing down the child and does not necessarily involve threat of force.

Parental kidnapping is often referred to as a form of child abuse because of the harmful effect it has on a child. An abducted child suffers emotionally and at times physically when in unlawful custody of an abductor-parent. Sometimes, a child is misinformed and being told intentionally that the other parent is dead or no longer loves it. The child is removed from family and friends, frequently given new names with instructions not to reveal their original names or where they resided earlier.

There has been a significant increase in parental child stealing after the mid-70s in keeping with the escalating divorce rate and rising child-custody litigation. Parental kidnapping may describe taking away, retaining and concealment of a child by another parent, a family member or an agent in contravention of custodial rights, which includes visitation rights, of the other parent or a family member. Abductor-parents have even been known to move from one state to another, or even flee the country. In so doing the abductor-parent may totally end any hope of intervention by the child protective service of the child’s country of origin and the remaining parent may have to file an application for return under the Hague Convention.

In San Diego, parents in disputes relating to child custody or being involved in child abduction can consult the family law firm of Doppelt and Forney, APLC. While the firm offers legal services in all facets of family law, it has also practiced in cases relating to child custody rights, child support, visitation rights, and instances of child abduction. The firm also offers a free, initial half-hour introductory appointment for an evaluation of your case.