Effectiveness of the Legal System’s Response to Family Abduction

The Documentary and Statewide Studies yielded data on the California legal system’s response in cases of family abduction and on the relative effectiveness of its response. In a multivariate analysis that controlled for custodial and marital status, gender, occupation, race, criminal history, and family violence/child abuse allegations of the parents, the Documentary Study found that the greater the intervention by the district attorney’s office, the more rapid the recovery of the child. The intervention ranged from filing a complaint to issuance of a criminal charge, prosecution, conviction, and, finally, incarceration. Almost one-half of the children were returned within about 2 months of the filing of a complaint, and two-thirds were returned within 3 years of the abduction.

The threat of prosecution was sufficient to bring most abductors back with the child. In about 90 percent of the cases in which the child was recovered, the case was resolved informally by the district attorney’s office, often after the abducting parent had been informed that abduction is a crime under State law. Once abducting parents realized that criminal action could be taken against them, they often returned the child voluntarily and attempted to resolve the matter in family court. If the abductor attempted to obtain a custody order or modification of an order in the court with proper jurisdiction, then the district attorney’s office did not, in general, pursue the criminal offense.

The district attorney formally prosecuted only 10 percent of the abductors. Of these, one-fourth were convicted with no incarceration, one-fourth were convicted and incarcerated, and the remaining half were released because charges were dismissed. The Statewide Study found similar rates of conviction and incarceration, with repeat offenders more likely to be convicted.

The Statewide Study included an examination of parents who were charged for abducting more than once. It found that the greater the sanctions employed by the court at the initial abduction, the more likely the abductor was to reabduct, controlling for other factors. That is, those convicted of abduction were more likely than those not convicted to subsequently reabduct their children. Not enough is known about the psychological characteristics of those who were convicted to understand why they were more likely to reabduct. This group, however, represents a very small and extreme subset of all family abductions (about 2–3 percent). Within this group, conviction of criminal custodial interference is not a successful deterrent to further abductions, a fact that left-behind parents greatly fear.

Both the Documentary and Statewide Studies found that the criminal justice system was more likely to pursue postcustodial offenders. When a parent violates an existing written custody order issued by the court, it is easier for prosecutors to prove the offense was a knowing violation. When no such document exists, as in precustodial abductions, it is harder to prove in court that the abducting parent knew he or she was violating the law.

The Statewide Study found a divergence in the criminal justice system’s treatment of men and women. Men were more likely than women to be arrested for abduction, but the women who were arrested for abduction were more likely than men to be convicted and incarcerated. This difference appears to relate to the specific criminal codes that men and women usually violate. Women were more likely to abduct after a custody order existed, a criminal offense that is easier to prove to be a knowing violation. On the other hand, men were more likely to abduct in the absence of a custody order, a criminal offense that is more difficult to prove to be a knowing violation. In addition, violating an existing custody order constitutes contempt of court, which judges are less likely to tolerate. This apparent lack of tolerance is more prevalent when the offender is a Caucasian woman, possibly because the court expects her to be more law-abiding than nonwhite women or male offenders. The court, therefore, may treat her more harshly than female offenders of other races or male offenders, because her behavior is contrary to societal expectations.

The Documentary Study found no differences in the district attorneys’ treatment of abduction cases with regard to the abductor’s gender, race, or ethnic background. The Statewide Study, however, found that the criminal courts treated Caucasians more harshly than ethnic and racial minorities in case dispositions. This may have been because the Caucasians more often had child custody orders and, therefore, violated the section of the code that was easiest to prove. Another explanation for the disparity in treatment is that the court expects Caucasians to be more law-abiding—that is, the courts more severely sanctioned Caucasians who violated the law because this group had fallen out of role expectations. Another interpretation is that Caucasian left-behind parents pressed the justice system to pay more attention to their cases and, in turn, obtained it.

The Documentary Study found that the left-behind parents with higher occupational status were more likely to obtain severe sanctions against the abductor. One explanation for this is that more of these parents have skills that enable them to deal effectively with a government agency. Examples of such skills include persistence and organization and the ability to provide information in a businesslike fashion, to gain cooperation, to expect action, to keep track of conversations, and to take the initiative to follow up.

Both the Documentary and Statewide Studies found that the criminal justice system acted more harshly when responding to abduction cases that included allegations of child abuse or family violence by the abductor toward the child or other parent. Prior criminal history, however, did not influence the district attorneys’ or the criminal courts’ intervention.

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Early Identification of Risk Factors for Parental Abduction Juvenile Justice Bulletin March 2001