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#409 Kidnapping

mp3 #409 Child Stealing (mp3 file)


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Is it against the law for your child's other parent, or some other relative, or some third person, to take your child from you? The answer is yes, under certain circumstances.

Of course, if you and your child's other parent are legally married, and there have never been any court orders of any kind concerning the child, then your spouse has as much right as you do to custody of your natural or adopted children, even if you and your spouse are not living together, unless one spouse takes a child with the intent to deprive the other spouse's right of custody of that child.

But if a court has made an order concerning child custody or visitation then no one else has the right to take your child away from you, except according to the terms of the court order, and while the order remains in effect.

The first question in child stealing cases is to determine if there are any court orders in effect establishing rights of custody or visitation. California court orders (or judgments) can be issued in civil cases involving divorce or separation of the parents, domestic violence, adoptions, guardianships, paternity, or in cases where your child has been made a dependent or a ward of the juvenile court. Other states can issue similar orders. Orders can be temporary or permanent, and they can usually be modified up until the child's 18th birthday. If there ·is a court case involving your child, you should always keep handy a certified copy of the latest court order. Naturally, the order must still be in effect for it to be enforceable.

The next question in child stealing cases is: who took the child? There are four situations to consider here. First, is the person who took the child given certain rights by a court order? If there is a court order in effect, California Penal Code Section 278.5 makes it a crime for a person who is entitled to custody or visitation under the order, to take, entice away, detain, conceal, or retain the child with the intent to maliciously deprive the other person or agency of their rightful custody or visitation rights. This crime is a felony, punishable by up to three years in state prison, and a fine of up to $10,000.00. For example, if a mother with joint custody moves to another state and hides the child without-letting the other parent know where she has gone with the child, she would violate the child stealing law.

The second situation involves a person who takes a child but has no legal rights to custody, when the person taking the child is either a biological parent, or a "presumed natural father" under California Family Code Section 7611, or an adoptive parent, or a person who has been granted access to the child by court order. Such a person can be sentenced to up to four years in the state prison plus a $10,000 fine under Penal Code Section 278, if that person takes, entices away, detains, or conceals a child with the intent to keep or hide the child from the person or agency having legal custody of the child. For example, if an aunt is made temporary guardian of her niece, and there is no court ordered visitation for the niece's natural mother, if the Mother steals the child from the aunt and moves to another state to prevent the aunt from having anything to do with the child, then the mother would be guilty of child stealing under Penal 'Code Section 278.

The third situation involves some person, other than one of those listed in the second situation, who takes a child forcibly to some other part of the country or beyond. If that person-is not a parent, a presumed father, an adoptive parent, or a person with court-ordered access, then the person could be sent to state prison for up to eight years (or even eleven years if the child is under 14) plus a $10,000 fine, for kidnapping under Penal Code Sections 207 and 208. For example, if a grandparent helps a mother fly the child away to the east coast and hides the child from its father, the grandmother would be guilty of kidnapping, even if neither the mother nor the father had obtained a custody or visitation order from the court.

The fourth situation involves a parent who takes a child away before there is any court order. Usually, both parents of a child have an equal right to custody, until a court makes an order establishing custody and visitation rights. But if one parent, without good cause, maliciously takes, entices away, detains, or conceals a child before there is a court order, with the intent to deprive the other parent of his or her right of custody, then the abducting parent faces a punishment of up to three years in state prison, plus a $10,000.00 fine, under Penal Code Section 278.5.

"Good cause" means that the abducting parent must have a good faith belief that his or her action is necessary to protect the child from immediate bodily injury or emotional harm. "Good cause" also includes the good faith and reasonable belief by a person with a right of custody of the child who has been the victim of domestic violence by another person with a right of custody of the child, that the child, if left with the other person, will suffer immediate bodily injury or emotional harm. In this context, "domestic violence" refers to abuse to a spouse, a former spouse, a cohabitant, a former cohabitant, or any other adult person related by blood or by marriage within the second degree, or a person with whom the accused individual has had a dating or engagement relationship. The words "emotional harm" also include having a parent who has committed domestic violence against the parent who is taking and concealing the child. The person who takes, detains, or conceals the child must immediately file a report of his or her action with the district attorney's office in the jurisdiction where the child has been living. The person's address is kept confidential until the court releases that information. Immediate temporary court restraining and custody orders must also be obtained. The parent who runs off with a child with malicious intent could still be prosecuted, even if that parent later obtains a court order for custody. However, if a mother takes her child and goes to a shelter for battered women for a few days, without telling the child's father where she has gone, and she obtains temporary domestic violence restraining orders which include custody and visitation orders pending a hearing, and then gets her own apartment, and lets the child telephone the father several times before the court hearing, such a mother would not be guilty of child stealing. The mother must still report the situation to the district attorney's office quickly (within two days is a good guideline).

For a person to be convicted of child stealing, each of the following items must be proved:

1. The person took, detained or concealed, or enticed away a minor child. The word "detain" means to delay or hinder; it does not necessarily include force or menace. The word "entice" means to allure, attract, draw on, or to lead astray by exciting hope or desire; it does not necessarily include any domination over the child's will. A person can be convicted of child stealing even if the minor child consents to being taken away.

2. It must also be proved that the person taking away the minor child did not have a right to custody of the child. This law even applies to the father or mother of a child whose custody has been awarded to the other parent.

3. It must also be proved that the person taking the minor child, did so maliciously. The word "maliciously" means with intent to vex, annoy, or injure another person, or an intent to do a wrongful act.

4. It must finally be proved that the person taking the child did so with the specific intent to detain and conceal the child from the person, guardian, or public agency who has lawful charge of the child.

Anyone who abducts a child may also violate Penal Code Sections 236 and 237, false imprisonment, by keeping the child. The force, menace, fraud or deceit required for false imprisonment may be committed against the parent entitled to custody, rather than against the child.

The uniform child custody jurisdiction act (starting at California Family Code Section 3400 has been passed by all 50 states, and regulates the treatment of interstate child custody situations in civil actions such as divorce, separation, and guardianship.)

In addition, federal law now requires all state courts to abide by child custody decrees issued by any other state. This law passed to discourage parents from abducting their children and moving to another state where they would try to have a court award child custody to them. Federal law also now directs the FBI to help apprehend parents who kidnap their own children and move to another state.

The U.S. has signed a treaty with several other nations regarding return of abducted children.

If you are uncertain of your legal rights, or if you wish to obtain a court order affecting your child custody, contact your attorney, or your local lawyer referral service. If your child is abducted from you, immediately contact your local police or Sheriff's office. They can take the initial report and refer the case to the district attorney's child abduction unit.

Child stealing laws are enforced in order to prevent the great emotional harm that child stealing inflicts upon stolen children and their victim parents.

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