Abstract: This article provides strategies for recovering children who have been taken from other states and countries to California. This article covers enforcement under the Uniform Child Custody Jurisdiction Act. After publication of this article, the Act was revised and is now called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Civil Code section cited in this article are superseded by the Family Code. This article does not address recovery of kidnapped children using The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction <hcch.net>
To Catch a Child Thief, by Peter M. Walzer, California Lawyer, 1991 (A publication of the State Bar of California)
Quick Court Action Can Bring the Return of a Kidnapped Child
It was six in the morning. My client and I were parked a block away from the dingy North Hollywood apartment her ex-husband had just rented. He had been on the run since he had abducted their child a month earlier. With guns drawn, police banged at the door and served him with an order to turn over the child. A few minutes later, they carried out a crying boy and put him into the patrol car. Mother and son were reunited at the police station.
Despite the trauma of the rescue, his is one of the success stories. Every year more than 100,000 children are kidnapped by a parent in this country. Typically the kidnapping parent moves to another state or country. Once there was little the courts could do to help return the child even when the child was located. Now courts have the tools to quickly enforce custody orders from other states and countries.
Every state has some version of the Uniform Child Custody Jurisdiction Act, which applies in interstate and international child custody cases. The law requires that state to recognize custody orders from other jurisdictions. It allows parents to register a custody order from another state or country so that the local court can order a kidnapping parent to release the child to the custodial parent. California’s version is at Civil Code section 5150et seq. In addition, 15 countries have signed the Hague Convention on Civil Aspects of International Child Abduction, which enables parents to recover stolen children from these countries.
If you receive a call from a parent saying he or she believes the stolen child is in your jurisdiction, you must act quickly. Child snatchers are elusive; they often move from state to state to avoid capture. The objective is to convince a California court to issue a turnover order without asserting jurisdiction over custody, which would require a full-blown custody hearing. An ex parte turnover order can be obtained if you do the following:
Retrieving the child can be dangerous and requires the following precautions:
ANOTHER METHOD of getting a turnover order is to obtain a warrant in lieu of a writ of habeas corpus. Submit a proposed order with the application for the writ and the writ itself and schedule a hearing; notice is not required if you can show good cause, such as a belief that the child may be removed from the jurisdiction. The writ gives the local district attorney authority to pick up the child and deliver him or her to the court.
The order should include the following provisions:
This procedure has several advantages over an ex parte order. The district attorney’s office routinely handles child abductions and is more experienced in such matters than other law enforcement agencies. The hearing is prompt, and it is less likely a judge will conduct a full-blown custody hearing using this procedure because its purpose is limited to releasing the child to the custodial parent.
A disadvantage is that the child may be in the custody of law enforcement or child protective services for several days until the hearing. Many parents prefer using an ex parte hearing to avoid this.
At the hearing you should establish the wrongful abduction and your client’s right to custody. The issues should be limited to whether there was a valid custody order in the other state or country and the abducting parent had notice and an opportunity to be heard at that custody hearing.
Regardless of which procedure you use, be prepared for the abducting parent’s attorney to claim the California court has jurisdiction over custody and to call for a full custody hearing. If the attorney can show your client abused the child or has placed the child in imminent danger, the court could take jurisdiction over custody and create costly delays in getting the child back.
[For more information, see the National Center for Missing and Exploited Children and Child Quest International.]