California Family Code sections 3130 through 3134.5 allow District Attorneys to assist courts in both enforcing orders and locating and returning missing children. As of today, California is the only state to follow this unique legislative theme. Prior to this legislative mandate, many parents who could not afford to initiate private proceeding ended up losing their children. It is important to note that the cost of the District attorneys’ abduction recovery work is also reimbursable by the state under the Child Abduction and Recovery Mandate.
The most important part of the policy is that parents now have an effective means to recover their children, without having to pay for a long and expensive search and court process. Additionally, California prosecutors can help rapidly resolve cases without filing criminal actions and help parents get their children back safe and sound.
Here are the applicable sections of the California Family Code and California Penal Code that California prosecutors work with in parental child abduction cases.
§3130. If a petition to determine custody of a child has been filed in a court of competent jurisdiction, or if a temporary order pending determination of custody has been entered in accordance with Chapter 3 (commencing with Section 3060), and the whereabouts of a party in possession of the child are not known, or there is reason to believe that the party may not appear in the proceedings although ordered to appear personally with the child pursuant to Section 3411, the district attorney shall 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. The petition to determine custody may be filed by the district attorney.
§3131. If a custody or visitation order has been entered by a court of competent jurisdiction and the child is taken or detained by another person in violation of the order, the district attorney shall take all actions necessary to locate and return the child and the person who violated the order and to assist in the enforcement of the custody or visitation order or other order of the court by use of an appropriate civil or criminal proceeding.
§3132. In performing the functions described in Sections 3130 and 3131, the district attorney shall act on behalf of the court and shall not represent any party to the custody proceedings.
§3133. If the district attorney represents to the court, by a written declaration under penalty of perjury, that a temporary custody order is needed to recover a child who is being detained or concealed in violation of a court order or a parent’s right to custody, the court may issue an order, placing temporary sole physical custody in the parent or person recommended by the district attorney to facilitate the return of the child to the jurisdiction of the court, pending further hearings. If the court determines that it is not in the best interest of the child to place temporary sole physical custody in the parent or person recommended by the district attorney, the court shall appoint a person to take charge of the child and return the child to the jurisdiction of the court.
- When the district attorney incurs expenses pursuant to this chapter, including expenses incurred in a sister state, payment of the expenses may be advanced by the county subject to reimbursement by the state, and shall be audited by the Controller and paid by the State Treasury according to law.
- The court in which the custody proceeding is pending or which has continuing jurisdiction shall, if appropriate, allocate liability for the reimbursement of actual expenses incurred by the district attorney to either or both parties to the proceedings, and that allocation shall constitute a judgment for the state for the funds advanced pursuant to this section. The county shall take reasonable action to enforce that liability and shall transmit all recovered funds to the state.
- Upon request of the district attorney, the court may issue a protective custody warrant to secure the recovery of an unlawfully detained or concealed child. The request by the district attorney shall include a written declaration under penalty of perjury that a warrant for the child is necessary in order for the district attorney to perform the duties described in Sections 3130 and 3131. The protective custody warrant for the child shall contain an order that the arresting agency shall place the child in protective custody, or return the child as directed by the court. The protective custody warrant may be served in any county in the same manner as a warrant of arrest and may be served at any time of the day or night.
- Upon a declaration of the district attorney that the child has been recovered or that the warrant is otherwise no longer required, the court may dismiss the warrant without further court proceedings.
Part 3 (commencing with Section 3400) does not limit the authority of a district attorney or arresting agency to act pursuant to this chapter, Section 279.6 of the Penal Code, or any other applicable law.
Please contact the Child Abduction Unit of your local District Attorney’s Office if your child has been abducted by the other parent.
For more information about child abduction, contact the National Center for Missing and Exploited Children, your local law enforcement or FBI office.
Any and all advice contained herein is intended only to assist parents and families with abduction of children. Nothing suggested in this article should substitute for common sense, police direction or other professional advice.
About The National Academy for Child Abduction Prevention Associates, LLC:
Founded in 2013 by Roy M. Doppelt, Esq., the National Academy for Child Abduction and Prevention Associates, LLC is an Academy of family law attorneys advocating prevention of child abduction through public education and professional collaboration. We believe that educating the public about kidnapping and its prevention is a paramount duty of attorneys who represent family law clients.