What do you do if you’re the victim of spousal abuse, but you’re afraid that taking the children to an undisclosed location will run afoul of the California child abduction statute? As a child custody and visitation attorney and mediator, and also as a lawyer who deals with claims of domestic violence, I often get this question.
As a general rule, it is a crime for parent to relocate the children with the intent to deprive the other parent of their custodial rights. See California Penal Code section 278.5.
But there is an exception to the general parental kidnapping law for victims of domestic violence. A parent may legally conceal a child if they have a right to custody of the child themselves, and have a “good faith and reasonable belief that the child, if left of the other person, will suffer immediate bodily injury or emotional harm.” Penal Code section 278.7.
Subsection B of that section provides that the parental kidnapping prohibition does not apply to someone with a custodial right to a child “who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm.”
It’s important to note that your “reasonable good faith belief” must be objectively reasonable, that is, you must be able to present evidence that would cause a reasonable person to believe that the child is in danger, not you. However, you should be able to establish this if your subject to extreme and repeated physical or emotional abuse.
Also, if you are availing yourself of this section, it is your duty to make a report to the District Attorney’s Office of the county where the child lived before you took action. You must do this within a reasonable period of time, which the statute says is at least 10 days. At the same time, you must reasonably commence a custody proceeding. This can be in the form of a divorce proceeding, a domestic violence restraining order or a paternity action. A reasonable period of time commensurate custody proceeding is at least 30 days. Note that if you file for dissolution of marriage, you should also file in Order to Show Cause hearing to request custody orders. If you believe that the children are in immediate danger, you can also use the ex parte procedure to obtain emergency orders right away.
For San Diego County, contact the San Diego Dist. Atty.’s Child Abduction Unit at (619) 531-4345 to report that you have removed or concealed your children or a child with the belief that the child is in danger. For any other County, contact that counties District Attorney’s Office for instructions.
Please feel free to call my office if you have any questions about this. I remain…
Very truly yours,
Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.
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