By Julianne Sylva
Since the late 1980's, the District Attorney has dedicated a team of professionals to locate and recover children who have been abducted by a parent or family member. This is a complicated area of the law as the district attorney may utilize either criminal or civil laws in family abduction cases.
While I cannot comment specifically on the case presented by Kathleen Flynn in last Wednesday’s blog on this site, I can give some general information about family abduction matters that might be helpful.
In California, a person may not withhold, conceal or abduct a child from another person who has a right of custody to the child. This is different than most states as California does not require that a custody order be violated. In California, both parents have an equal right of custody to the child, even without a court order.
California has been used as a model for other states in this regard. The national Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), which has been adopted in 48 of 50 states, is based upon the California Civil Code sections that mandate that prosecutors locate and recover children taken in violation of a person's right to custody. What is so helpful about these civil code sections is that they provide the district attorney with additional tools other than prosecution in order to locate and recover children.
This is important because an arrest warrant may be served upon an abductor, but it will not get the child back to the left-behind parent or guardian. Alternatively, under the civil enforcement option, the prosecutor may get a protective custody warrant for the child and recover the child. Both parents or guardians then return to family court where the judge may resolve outstanding custody and visitation issues.
Another great tool provided to prosecutors is that we may facilitate communication between judges. For example, if one court issues an order regarding custody and a parent removes the child to another jurisdiction and gets another order without revealing that there was a prior order, there would be two conflicting orders. A judicial communication (a fancy term for getting the judges to talk on the record, in their respective courtrooms, with the parties present in their jurisdictions and the matter being conducted on speakerphone and taken down on the record) enables the judges to examine the case history and documents and make a determination as to which court order takes precedence.
I want to take this opportunity to remind you that there is no waiting period to report a missing child, despite what you may hear on television (Penal Code 14205). In fact, we ask that police take a missing person's report and enter the information into the Missing and Unidentified Person System (MUPS) any time a parent or guardian reports to the police that he or she does not know where the other parent and child are. This is because, even if the parent is with the other child and the parent takes the child from the other parent and withholds the child, if the other parent does not know where they are located, the child is considered "missing."
If a situation arises such as the case Kathleen describes in her blog, please contact the district attorney's office in the county where the left-behind parent lives. There are 58 counties in our fine state, and most DA offices have individuals trained to handle these cases.
Our District Attorney, Dolores Carr, created a special service for Santa Clara County residents who wish to report a visitation violation. Her office website now allows a parent to make a visitation violation report online without having to contact their local police agency. This not only frees up valuable police resources and time but also saves the reporting party from having to go to the police station to collect a copy of the report as the party can print the report out immediately at home.
Please be advised that, upon receipt of the online visitation report, the District Attorney's Office will not take further action on the reported violation, but the reporting party may use this report in any future family court filing.
If you have any questions, you may contact me directly at (408) 792-2523 or jsylva@da.sccgov.org. If you’d like our assistance on an abduction case, I ask that you please call our intake number at (408) 792-2921 during business hours.
Julianne Sylva is a Deputy District Attorney for Santa Clara County assigned to the DA’s Child Abduction Unit. She wrote this article in response to last week’s blog by Kathleen Flynn and the comments it generated.
Wednesday, September 9, 2009
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Ms. Sylva,
ReplyDeleteI really want to thank you for writing this. It is a topic that is vital to our community. I'd really like to see your office on here more often providing us with more information like this.
Your office, especially Patty, has been very kind, supportive, and very compassionate to my neighbor. He is at his wits end about this. His mother cries everyday because she misses her one and only grandchild. Your office notified them that the mother has been served now, and that she is fully aware that judge has ordered her to return forthwith.
My question to you is, what happens if she doesn't?
DA wrote: ”In California, a person may not…conceal or abduct a child from another person who has a right of custody to the child. This is different than most states as California does not require that a custody order be violated…
ReplyDeleteThat’s all wonderful but here is the part that the DA neglected to mention and which makes the abduction laws, in 90% of the cases, virtually unenforceable:
[Cal. Penal Code: 278.7. (a) Section 278.5 does not apply to a person with a right to custody of a child 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, takes…or conceals that child. (b) Section 278.5 does not apply to a person with a right to custody of 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, takes…or conceals that child. "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking…keeping or concealing the child.]
Emotional harm? This is anything the reporting party says it is. Example:”Officer he told me I was a slut right in front of the child. My self-esteem was shattered, I was emotionally harmed” etc.
Good faith and reasonable belief? Again, this is anything the reporting party says it is. Example: “Officer, he has a bad temper. Once while he was watching the Super Bowl, he told me, ‘Will you shut that kid up or I’ll do it for you. I just know he’ll harm the child”. How are the police supposed to investigate the validity of that “good faith” belief? The cops just have to take their word for it, to the detriment of the other party.
Here’s the kicker: "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking…keeping… the child.” It does not matter what constituted the alleged domestic violence. It could have been a push, a scratch or even a harsh word, the law makes no distinction and neither can the police.
Example:
Complainant: “Officer, he ‘domestic violenced’ me, he pushed me once and I hit my elbow on the kitchen counter, knocking over the pile of dirty dishes that had been there for a month”
“Insensitive” Cop: “Did you report it? When did it happen?”
Complainant: “No, it happened about a year ago in Nevada and I’ve been too afraid to report it because I’m still living with him, but he can’t take my child if he ‘domestic violenced’ me, the counselor at the women’s shelter and my attorney told me that, besides, it’s on the internet”
The abduction laws are a game. The only way to deal with the problem once the police are made aware or become involved, is to take the child away from whatever parent has custody, and place the child in foster care until the parents get their act together .This would though be insensitive to the child. The poor thing already has losers for parents, as evidenced by their inability to solve their problems without police or judicial system intervention but that is the only conclusive remedy, in real life, under current law .
“… there is no waiting period to report a missing child,…we ask that police take a missing person's report and enter the information into the Missing and Unidentified Person System (MUPS)” .Most police departments have 1-2 data specialists doing nothing but entering names into MUPS then taking the same names out less then 24-48 hours later and doing this 2-3 times a month with the same child.
“(DA’s office) …website now allows a parent to make a visitation violation report online …upon receipt of the online visitation report, the District Attorney's Office will not take further action on the reported violation, but the reporting party may use this report in any future family court filing”. Why? Does the parent with the heaviest mound of reports win custody? This is called “enabling” It would be better to hand out birth control information.
Robillard said,” The abduction laws are a game." After what I was just told by my neighbor, I'd have to agree. I gave him a copy of Ms. Sylva's column. He came down a few hours later to tell me that the investigator at the DA's Office had just called him and told him that the mother wouldn't be arrested for ignoring a court order to come back to Santa Clara County because she is "cooperating" with their office. The investigator, according to my neighbor, told him her only option would come back her and live in a domestic violence shelter with the baby, and that would look bad for HIM!
ReplyDeleteNow HE is the one who is being treated like a criminal. Unbelievable!
He follows the law, files in court, gets a court order that requires her to return forthwith, but now has to listen to all the reasons why a woman who stole his child, and refuses, to this day, to tell him where she is can't not be brought back here, so he can see his child. And people wonder why we have zero faith or respect for the law, and why victim's rights are always ignored. This is the most ridiculous thing I've ever heard or seen in my life.
Mr. Christian,
ReplyDeleteI wish this had been the most ridiculous thing I had ever heard of or seen in my life. Unfortunately, that is reserved for the too frequent case where both parties accuse the other of domestic violence and/or child abuse and both get restraining orders against each other or a court order that allows only “peaceful contact”. If such “babies” could have “peaceful contact” (for other than procreation) they wouldn’t be in the child custody mess that they now expect to be cleaned up by the judicial system and the police
My guess is that this “mother” (my apologies to all true mothers out there, those who put the interests of their children ahead of all else) is probably very physically attractive, but under or un-educated and has never had any meaningful employment and now will live off child support and AFDC (Aid to families with dependant children) funds from the state. This is generally what happens. As well, since it was mentioned that grandma had a drug problem, my guess is that “mom” does, or did, too. I may be wrong but this is typically the case. While “mom” is on welfare (AFDC) she will probably get all the free legal services she wants too and will be unrestricted in her efforts to drag your neighbor through family court.
If your neighbor is just one of those rare, poor unfortunate souls who just makes poor choices in women then I truly have sympathy for him. I hope he has learned something from this experience but he will unfortunately be putting up with this mess and treatment for about the next 18 years and he should adjust his thinking to prepare for this. If your neighbor thinks things are bad now, wait until he finds another girlfriend and/or “mom” gets a new boyfriend. Typically the parties will attempt to throw the new “trophy” love-interest into the others face and likely shack up with them, in full view of the child. Marvelous. Once this occurs, one side typically seeks revenge by ratcheting up the child support and/or restraining orders and/or custody or visitation adjustments and coaching the child into making accusations that the “love interest” is now abusing the child.
Please, while admittedly (and I think justifiably) cynical, I am not trying to be derogatory towards your neighbor but unless he finds a way to control himself and to make better choices in women, it might save him a good deal of money, and some child a great deal of heartache, if he were just to get a vasectomy. He cannot control this situation now no matter how many lawyers he gets or how much time and money he spends in family. He can only attempt to react properly to what others do.
This is not a gender issue. It’s a matter of responsibility and when the man does not demonstrate enough responsibility to marry the DNA receptacle of his desires, he gives up a good portion of his rights.
Wait until the holidays and the birthdays come. I would rather join the Marines and go back to Afghanistan. Believe me, when the child asks “Daddy, why didn’t you come to my birthday party with mommy?” dad will feel like he was hit by a roadside bomb.
Robillard,
ReplyDeleteThanks for your thoughts. It sounds like you work in this area and know a lot about what goes on. Unfortunately, I think that our system does a lot to enable this kind of behavior. As you point out uneducated, jobless, women having babies, one after another seemingly aren't encouraged to do much else with their lives.
I agree that the child in every case should come first and foremost at all times. That is why I think men/women need to think long and hard about procreating. The child will always be the one that suffers when they don't, and will grown up to be exactly like their parents.
I do still disagree with you on gender bias and the judicial system. Men are held to a higher stand of conduct and prosecuted more severely than women.
Mr. Christian,
ReplyDeleteDebate is always good and you may well be correct on at least one count here. Men are indeed prosecuted more vigorously for domestic violence than are women. If a man kills a female with whom he is in a “relationship” (no doubt dysfunctional) it is a rebuttable presumption by the DA’s that the male was the aggressor and he will be prosecuted with maximum vigor. However, if the female kills the male, she will have any number of so-called expert witnesses come forward to talk about “battered woman’s syndrome” and how even killing the “abuser” (for such is what he will be dehumanized into) in his sleep was justifiable if the male had ever committed an act of even nebulous domestic violence, whether reported or not, whether it actually occurred or not. Is there such a thing as “battered man’s syndrome? Are there any “Battered men’s shelters? Anyone doubting this need only watch the old Farrah Fawcett movie “The Burning Bed”. The female protagonist in the movie set the abusive male on fire while he was asleep and was hailed (by movie critics and social commentators) as a heroine. This is the criminal side of the problem. There is unmitigated bias against the male on the criminal side of this equation. The family law side is a little bit different.
There is still some bias in the system but in divorce/custody matters, the first one to the attorney usually “wins”. For a man, in family court matters, the best defense is a good offense. If a man is married to his child’s mother, and “draws first blood” with a court order delineating his rights of custody, visitation etc, he is in a much stronger position than is a man who is not married to the child’s mother or who responds only after the mother takes the child away, as happened here. Family Courts do tend to dismiss the rights of the latter much more readily than the former. I have trouble looking on that as necessarily a bad thing. If the male is so dull-witted that he “drops his drawers” with an immature, psychologically flawed woman and so irresponsible that he fathers a child with such a questionable woman in a dysfunctional relationship, then the child is probably better off not having to watch the interaction between the two moronic parents. The child does though deserve better.
Men should hold themselves to a higher standard of conduct, just in general. Any idiot can father a child but not every man can be a father. There is still some bias in the system but this just doesn’t seem to be a case of it, as much as it does two 20 year olds with the maturity quotients of two12 year olds.
Mr. Christian, if this guy is your neighbor, I would put up nice, sound insulated fence. Odds are good that the police will be out there at your neighbor’s house during at least one “screaming fit child custody exchange ceremony”, especially if mom starts dating a new “winner” boyfriend and then insists on bringing the winner around for the exchange. That poor kid.