Abduction and Kidnapping

Per http://law.justia.com/California/codes/pen/277-280.ltml

PENAL CODE

SECTION 277-280

277. The following definitions apply for the purposes of thischapter: (a) "Child" means a person under the age of 18 years. (b) "Court order" or "custody order" means a custody determinationdecree, judgment, or order issued by a court of competentjurisdiction, whether permanent or temporary, initial or modified,that affects the custody or visitation of a child, issued in thecontext of a custody proceeding. An order, once made, shall continuein effect until it expires, is modified, is rescinded, or terminatesby operation of law. (c) "Custody proceeding" means a proceeding in which a custodydetermination is an issue, including, but not limited to, an actionfor dissolution or separation, dependency, guardianship, terminationof parental rights, adoption, paternity, except actions under Section11350 or 11350.1 of the Welfare and Institutions Code, or protectionfrom domestic violence proceedings, including an emergencyprotective order pursuant to Part 3 (commencing with Section 6240) ofDivision 10 of the Family Code. (d) "Lawful custodian" means a person, guardian, or public agencyhaving a right to custody of a child. (e) A "right to custody" means the right to the physical care,custody, and control of a child pursuant to a custody order asdefined in subdivision (b) or, in the absence of a court order, byoperation of law, or pursuant to the Uniform Parentage Act containedin Part 3 (commencing with Section 7600) of Division 12 of the FamilyCode. Whenever a public agency takes protective custody orjurisdiction of the care, custody, control, or conduct of a child bystatutory authority or court order, that agency is a lawful custodianof the child and has a right to physical custody of the child. Inany subsequent placement of the child, the public agency continues Tobe a lawful custodian with a right to physical custody of the childuntil the public agency's right of custody is terminated by an orderof a court of competent jurisdiction or by operation of law. (f) In the absence of a court order to the contrary, a parentloses his or her right to custody of the child to the other parent ifthe parent having the right to custody is dead, is unable or refusesto take the custody, or has abandoned his or her family. A naturalparent whose parental rights have been terminated by court order isno longer a lawful custodian and no longer has a right to physicalcustody. (g) "Keeps" or "withholds" means retains physical possession of achild whether or not the child resists or objects. (h) "Visitation" means the time for access to the child allottedto any person by court order. (i) "Person" includes, but is not limited to, a parent or an agentof a parent. (j) "Domestic violence" means domestic violence as defined inSection 6211 of the Family Code. (k) "Abduct" means take, entice away, keep, withhold, or conceal.278. Every person, not having a right to custody, who maliciouslytakes, entices away, keeps, withholds, or conceals any child with theintent to detain or conceal that child from a lawful custodian shallbe punished by imprisonment in a county jail not exceeding one year,a fine not exceeding one thousand dollars ($1,000), or both thatfine and imprisonment, or by imprisonment in the state prison fortwo, three, or four years, a fine not exceeding ten thousand dollars($10,000), or both that fine and imprisonment.278.5. (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 bepunished by imprisonment in a county jail not exceeding one year, afine not exceeding one thousand dollars ($1,000), or both that fineand imprisonment, or by imprisonment in the state prison for 16months, or two or three years, a fine not exceeding ten thousanddollars ($10,000), or both that fine and imprisonment. (b) Nothing contained in this section limits the court's contemptpower. (c) A custody order obtained after the taking, enticing away,keeping, withholding, or concealing of a child does not constitute adefense to a crime charged under this section.278.6. (a) At the sentencing hearing following a conviction for aviolation of Section 278 or 278.5, or both, the court shall considerany relevant factors and circumstances in aggravation, including, butnot limited to, all of the following: (1) The child was exposed to a substantial risk of physical injuryor illness. (2) The defendant inflicted or threatened to inflict physical harmon a parent or lawful custodian of the child or on the child at thetime of or during the abduction. (3) The defendant harmed or abandoned the child during theabduction. (4) The child was taken, enticed away, kept, withheld, orconcealed outside the United States. (5) The child has not been returned to the lawful custodian. (6) The defendant previously abducted or threatened to abduct thechild. (7) The defendant substantially altered the appearance or the nameof the child. (8) The defendant denied the child appropriate education duringthe abduction. (9) The length of the abduction. (10) The age of the child. (b) At the sentencing hearing following a conviction for aviolation of Section 278 or 278.5, or both, the court shall considerany relevant factors and circumstances in mitigation, including, butnot limited to, both of the following: (1) The defendant returned the child unharmed and prior to arrestor issuance of a warrant for arrest, whichever is first. (2) The defendant provided information and assistance leading tothe child's safe return. (c) In addition to any other penalties provided for a violation ofSection 278 or 278.5, a court shall order the defendant to payrestitution to the district attorney for any costs incurred inlocating and returning the child as provided in Section 3134 of theFamily Code, and to the victim for those expenses and costsreasonably incurred by, or on behalf of, the victim in locating andrecovering the child. An award made pursuant to this section shallconstitute a final judgment and shall be enforceable as such.278.7. (a) Section 278.5 does not apply to a person with a right tocustody of a child who, with a good faith and reasonable belief thatthe child, if left with the other person, will suffer immediatebodily 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 tocustody of a child who has been a victim of domestic violence who,with a good faith and reasonable belief that the child, if left withthe other person, will suffer immediate bodily injury or emotionalharm, takes, entices away, keeps, withholds, or conceals that child."Emotional harm" includes having a parent who has committed domesticviolence against the parent who is taking, enticing away, keeping,withholding, or concealing the child. (c) The person who takes, entices away, keeps, withholds, orconceals a child shall do all of the following: (1) Within a reasonable time from the taking, enticing away,keeping, withholding, or concealing, make a report to the office ofthe district attorney of the county where the child resided beforethe action. The report shall include the name of the person, thecurrent address and telephone number of the child and the person, andthe reasons the child was taken, enticed away, kept, withheld, orconcealed. (2) Within a reasonable time from the taking, enticing away,keeping, withholding, or concealing, commence a custody proceeding ina court of competent jurisdiction consistent with the federalParental Kidnapping Prevention Act (Section 1738A, Title 28, UnitedStates 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 addressor telephone number of the person and the child. (d) For the purposes of this article, a reasonable time withinwhich to make a report to the district attorney's office is at least10 days and a reasonable time to commence a custody proceeding is atleast 30 days. This section shall not preclude a person from makinga report to the district attorney's office or commencing a custodyproceeding earlier than those specified times. (e) The address and telephone number of the person and the childprovided pursuant to this section shall remain confidential unlessreleased pursuant to state law or by a court order that containsappropriate safeguards to ensure the safety of the person and thechild.279. A violation of Section 278 or 278.5 by a person who was not aresident of, or present in, this state at the time of the allegedoffense is punishable in this state, whether the intent to commit theoffense is formed within or outside of this state, if any of thefollowing apply: (a) The child was a resident of, or present in, this state at thetime the child was taken, enticed away, kept, withheld, or concealed. (b) The child thereafter is found in this state. (c) A lawful custodian or a person with a right to visitation is aresident of this state at the time the child was taken, enticedaway, kept, withheld, or concealed.279.1. The offenses enumerated in Sections 278 and 278.5 arecontinuous in nature, and continue for as long as the minor child isconcealed or detained.279.5. When a person is arrested for an alleged violation ofSection 278 or 278.5, the court, in setting bail, shall take intoconsideration whether the child has been returned to the lawfulcustodian, and if not, shall consider whether there is an increasedrisk that the child may not be returned, or the defendant may fleethe jurisdiction, or, by flight or concealment, evade the authorityof the court.279.6. (a) A law enforcement officer may take a child intoprotective custody under any of the following circumstances: (1) It reasonably appears to the officer that a person is likelyto conceal the child, flee the jurisdiction with the child, or, byflight or concealment, evade the authority of the court. (2) There is no lawful custodian available to take custody of thechild. (3) There are conflicting custody orders or conflicting claims tocustody and the parties cannot agree which party should take custodyof the child. (4) The child is an abducted child. (b) When a law enforcement officer takes a child into protectivecustody pursuant to this section, the officer shall do one of thefollowing: (1) Release the child to the lawful custodian of the child, unlessit reasonably appears that the release would cause the child to beendangered, abducted, or removed from the jurisdiction. (2) Obtain an emergency protective order pursuant to Part 3(commencing with Section 6240) of Division 10 of the Family Codeordering placement of the child with an interim custodian who agreesin writing to accept interim custody. (3) Release the child to the social services agency responsiblefor arranging shelter or foster care. (4) Return the child as ordered by a court of competentjurisdiction. (c) Upon the arrest of a person for a violation of Section 278 or278.5, a law enforcement officer shall take possession of an abductedchild who is found in the company of, or under the control of, thearrested person and deliver the child as directed in subdivision (b). (d) Notwithstanding any other law, when a person is arrested foran alleged violation of Section 278 or 278.5, the court shall, at thetime of the arraignment or thereafter, order that the child shall bereturned to the lawful custodian by or on a specific date, or thatthe person show cause on that date why the child has not beenreturned as ordered. If conflicting custodial orders exist withinthis state, or between this state and a foreign state, the courtshall set a hearing within five court days to determine which courthas jurisdiction under the laws of this state and determine whichstate has subject matter jurisdiction to issue a custodial orderunder the laws of this state, the Uniform Child Custody JurisdictionAct (Part 3 (commencing with Section 3400) of Division 8 of theFamily Code), or federal law, if applicable. At the conclusion ofthe hearing, or if the child has not been returned as ordered by thecourt at the time of arraignment, the court shall enter an order asto which custody order is valid and is to be enforced. If the childhas not been returned at the conclusion of the hearing, the courtshall set a date within a reasonable time by which the child shall bereturned to the lawful custodian, and order the defendant to complyby this date, or to show cause on that date why he or she has notreturned the child as directed. The court shall only enforce itsorder, or any subsequent orders for the return of the child, undersubdivision (a) of Section 1219 of the Code of Civil Procedure, toensure that the child is promptly placed with the lawful custodian.An order adverse to either the prosecution or defense is reviewableby a writ of mandate or prohibition addressed to the appropriatecourt.280. Every person who willfully causes or permits the removal orconcealment of any child in violation of Section 8713, 8803, or 8910of the Family Code shall be punished as follows: (a) By imprisonment in a county jail for not more than one year ifthe child is concealed within the county in which the adoptionproceeding is pending or in which the child has been placed foradoption, or is removed from that county to a place within thisstate. (b) By imprisonment in the state prison, or by imprisonment in acounty jail for not more than one year, if the child is removed fromthat county to a place outside of this state.

Being a guardian for someone is basically their legal representative, UNLESS these guardianship documents allow for actual physical custody. If that is the case, and the documents is notarized, given by the parent who has official custody, then it should be fine. But they need to file that document with the courts as soon as they can, publish it and make it official. That way, everyone knows what is going on and with whom.

You cannot be a legal guardian until you have been appointed by a court of law.