CACI No. 3051. Unlawful Removal of Child From Parental Custody Without a Warrant - Essential Factual Elements (42 U.S.C. § 1983)
Judicial Council of California Civil Jury Instructions (2025 edition)
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3051.Unlawful Removal of Child From Parental Custody Without
a Warrant - Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] wrongfully removed
[name of plaintiff]’s child from [his/her/nonbinary pronoun] parental
custody because [name of defendant] did not have a warrant. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] removed [name of plaintiff]’s child from
[his/her/nonbinary pronoun] parental custody without a warrant;
2. That [name of defendant] was performing or purporting to
perform [his/her/nonbinary pronoun] official duties;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2016
Directions for Use
This instruction is a variation on CACI No. 3021, Unlawful Arrest by Peace Offıcer
Without a Warrant - Essential Factual Elements, and CACI No. 3023, Unreasonable
Search or Seizure - Search or Seizure Without a Warrant - Essential Factual
Elements, in which the warrantless act is the removal of a child from parental
custody rather than an arrest or search. This instruction asserts a parent’s due
process right to familial association under the Fourteenth Amendment. It may be
modified to assert or include the child’s right under the Fourth Amendment to be
free of a warrantless seizure. (See Arce v. Childrens Hospital Los Angeles (2012)
211 Cal.App.4th 1455, 1473-1474 [150 Cal.Rptr.3d 735].)
Warrantless removal is a constitutional violation unless the authorities possess
information at the time of the seizure that establishes reasonable cause to believe
that the child is in imminent danger of serious bodily injury and that the scope of
the intrusion is reasonably necessary to avert that specific injury. (Arce, supra, 211
Cal.App.4th at p. 1473.) The committee believes that the defendant bears the burden
of proving imminent danger. (See Evid. Code, § 500 [“Except as otherwise provided
by law, a party has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense that he is asserting.”]; cf.
Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80 L.Ed.2d 732]
[“Before agents of the government may invade the sanctity of the home, the burden
is on the government to demonstrate exigent circumstances that overcome the
presumption of unreasonableness that attaches to all warrantless home entries.”].)
CACI No. 3026, Affırmative Defense - Exigent Circumstances (to a warrantless
search), may be modified to respond to this claim.
303
If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their homes
[without prior judicial authorization] absent such a showing. [Citation.] Officials,
including social workers, who remove a child from its home without a warrant
must have reasonable cause to believe that the child is likely to experience
serious bodily harm in the time that would be required to obtain a warrant.’
Because ‘the same legal standard applies in evaluating Fourth and Fourteenth
Amendment claims for the removal of children,” we may “analyze [the claims]
together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473-1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires an
official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d 990,
1000, internal citations omitted.)
• “This requirement ‘balance[s], on the one hand, the need to protect children
from abuse and neglect and, on the other, the preservation of the essential
privacy and liberty interests that families are guaranteed under both the Fourth
and Fourteenth Amendments of our Constitution.’ ” (Demaree v. Pederson (9th
Cir. 2018) 880 F.3d 1066, 1074.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Under the Fourth Amendment, government officials are ordinarily required to
obtain prior judicial authorization before removing a child from the custody of
her parent. However, officials may seize a child without a warrant ‘if the
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information they possess at the time of the seizure is such as provides reasonable
cause to believe that the child is in imminent danger of serious bodily injury and
that the scope of the intrusion is reasonably necessary to avert that specific
injury.’ ” (Kirkpatrick v. Cnty. of Washoe (9th Cir. 2016) 843 F.3d 784, 790 (en
banc).)
• “[I]t does not matter whether the warrant could be obtained in hours or days.
What matters is whether there is an identifiable risk of serious harm or abuse
during whatever the delay period is.” (Demaree,supra, 880 F.3d at p. 1079,
original italics.)
• “The parental right secured by the Fourteenth Amendment ‘is not reserved for
parents with full legal and physical custody.’ At the same time, however,
‘[p]arental rights do not spring full-blown from the biological connection
between parent and child.’ Judicially enforceable interests arising under the
Fourteenth Amendment ‘require relationships more enduring,’ which reflect some
assumption ‘of parental responsibility.’ It is ‘[w]hen an unwed father
demonstrates a full commitment to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,’ that ‘his interest in personal
contact with his child acquires substantial protection under the due process
clause.’ Until then, a person with only potential parental rights enjoys a liberty
interest in the companionship, care, and custody of his children that is
‘unambiguously lesser in magnitude.’ ” (Kirkpatrick, supra, 843 F.3d at p. 789.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at a
hospital as part of a child abuse investigation, such that a reasonable person in
the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “An official ‘cannot seize children suspected of being abused or neglected unless
reasonable avenues of investigation are first pursued.’ Further, because the ‘scope
of the intrusion’ must be ‘reasonably necessary to avert’ a specific injury, the
intrusion cannot be longer than necessary to avert the injury.” (Keates v. Koile
(9th Cir. 2018) 883 F.3d 1228, 1237, internal citations omitted.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial rights.”
(Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
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whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure.’ In such cases, . . . a plaintiff must
‘convince the trier of fact that he actually suffered distress because of the denial
of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal
citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042,
55 L.Ed.2d 252].)
• “Lack of health insurance . . . does not provide a reasonable cause to believe a
child is in imminent danger.” (Keates,supra, 883 F.3d at p. 1237.)
• “[B]arring a reasonable concern that material physical evidence might dissipate
. . . or that some urgent medical problem exists requiring immediate medical
attention, the state is required to notify parents and to obtain judicial approval
before children are subjected to investigatory physical examinations.” (Mann v.
Cty. of San Diego (9th Cir. 2018) 907 F.3d 1154, 1161.)
Secondary Sources
3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State
Law - Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.29 et seq. (Matthew Bender)
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