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What can you do if your child's other parent has taken your child in violation of a Court Order?

There are a number of actions you can take to get your child back when the other parent (or other relative) has taken your child without your consent and without a valid court order.

  •  If you know where the child is, you can call the police and ask an officer to meet you there to enforce the order. Though sometimes officers believe that their job in only to keep the peace, the law actually says otherwise. Before you take this step please consider the effect this will have on your child. If this is an ongoing problem, you may want to take action. However, if it is a one-time occurrence that is not likely to be repeated, you may want to provide the other parent with a warning and let it go (assuming they return the child).
  • If you do not know where the child is, after filing a police report, you can contact the Child Abduction Unit of the District Attorney's Office immediately at 619-531-4345 (during normal business hours). The Child Abduction unit of the District Attorney's Office has the responsibility for locating and recovering children who have been taken or are being detained in violation of a custody order. This includes children who are in San Diego County or in any other county or state or even in foreign countries. As long as you are a resident of San Diego County, they can help.
  • If the other parent violated a Court Visitation Order but then returned the child and you would like to have a record of it for future use in Court Proceedings, you can report the visitation violation by filing a report. Please remember that no further action will be taken on the report. For more information about this option and it's uses please click here.
  • If the other parent makes a regular habit of violating Court Orders, including visitation orders, you may want to file a Contempt action against them in court. There is also the option of requesting Modification of visitation due to the other parent's action. Before  taking either of these actions you should consult with an attorney.

 

The California Family Code Section 3131 states: “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.”

 

The California Penal Code Section 278.5 provides that: "(a) Every person who takes, entices away, keeps, withholds,or conceals a child and maliciously deprives a lawful custodian of aright to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment."

 

What if you feel that the child is in danger and that you can not return the child to the other parent without endangering the child?

 

There are exceptions to the rules which would allow you to detain the child if you have a good faith and reasonable belief that the child would be in danger.

 

 

The California Penal Code Section 278.7 provides: "(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, entices away, keeps, withholds, 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, entices away, keeps, withholds, or conceals that child. "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child."

 

However: There are actions you must take should you choose to take the child for their own protection and for the exceptions to apply.

 

The California Penal Code provides:

"(1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed.

(2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act (Section 1738A, Title 28, United States Code) or the Uniform Child Custody Jurisdiction Act Part 3 (commencing with Section 3400) of Division 8 of the Family Code).

(3) Inform the district attorney's office of any change of address or telephone number of the person and the child. (d) For the purposes of this article, a reasonable time within which to make a report to the district attorney's office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney's office or commencing a custody proceeding earlier than those specified times. (e) The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child."

 

****** If you are concerned for the safety of your child you should immediately consult with an attorney!

 

Will the police really enforce Family Court Orders?

This is a good question that is difficult to answer. Some police departments do enforce custody orders and others simply will not. If you plan on enforcing a visitation order you should make sure that you arm yourself with a copy of the most recent Court Order and the citation to the law.

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*Disclaimer

The content of this website is not intended to be, nor should it be considered, legal advice and does not create an attorney/client relationship of any kind.



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