Everyone seems to understand what kidnapping is in the classic sense when a person abducts a child and demands either ransom or specific performance for the safe return. Did you know that a parent with legal custody of his or her child can also be charged and convicted with parental kidnapping? This situation seems to come up most often with divorced or separated parents that have a specific parenting time schedule but one parent fails to follow it. A parent who intends to keep and conceal a child from the other parent can be found guilty of a crime that can result in fines or imprisonment.
An individual is guilty of parental kidnapping in Michigan, contrary to MCL 750.350a, if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 19.6):
- First, that the individual took or kept the child for more than 24 hours.
- Second, that the individual intended to keep or conceal the child from the parent or legal guardian who had legal custody or visitation rights at the time, a person who had adopted the child, or a person who had lawful charge of the child at the time.
There is no requirement under the law that a parent be formally served with custody or parenting time order before he or she can be charged with parental kidnapping. People v McBride, 204 Mich App 678, 682; 516 NW2d 148 (1994). A parent has a legal duty to return a child to the other parent as specified by court order. The fact that the kidnapping parent absconds to another state with the child does not eliminate a Michigan prosecution because "[t]he detrimental effects of the defendant's intentional retention of the [child] in violation of the Michigan court's custody order occurred here." People v Harvey, 174 Mich App 58, 61; 435 NW2d 456 (1989).
The penalties for parental kidnapping, a felony conviction, include any or all of the following:
- A fine up to $2,000.00;
- Imprisonment for up to one year and one day in jail or prison;
- "A parent who violates this section, upon conviction, in addition to any other punishment, may be ordered to make restitution to the other parent, legal guardian, the person or persons who have adopted the child, or any other person having lawful charge of the child for any financial expense incurred as a result of attempting to locate and having the child returned." MCL 750.350a(3).
It is a complete defense against parental kidnapping if a parent proves that his or her actions were taken for the purpose of protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect. MCL 750.350a(7). This is an affirmative defense, which means that the defendant has the burden of proof in showing his or her actions were in protection of the child. Even if the defendant does not meet this burden of proof, the prosecutor still has the burden of showing all other elements of parental kidnapping beyond a reasonable doubt.
A person who pleads guilty or is found guilty of parental kidnapping and does not have a prior conviction for kidnapping in Michigan or any other jurisdiction in the United States may be granted a diversionary sentence to avoid a conviction. MCL 750.350a(4).
- The trial judge, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation with lawful terms and conditions, including participation in a drug treatment court.
- Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and impose any lawful punishment under this statute, including imprisonment.
- Upon fulfillment of the terms and conditions of probation, the court shall discharge from probation and dismiss the proceedings against the parent.
- Discharge and dismissal under this subsection shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including any additional penalties imposed for second or subsequent convictions.
- This diversionary discharge and dismissal is only available once per individual.
It should be noted that prosecutors rarely pursue these charges because police agencies do not forward them for authorization. When a parent calls the police to assist in violations of a custody or parenting time order, law enforcement very often declines to get involved and advises the parties that this is a "civil matter" that needs to be handled by filing motions in the court granting the underlying order. The family law judge, on the motion of a party, can use the powers of civil contempt or criminal contempt to punish violators with fines or imprisonment. If law enforcement does intervene, it is usually in extremely serious cases of parental kidnapping that involve physical abuse or even leaving the country.
A charge of parental kidnapping is no laughing matter and requires the assistance of a skilled defense attorney. If you or a loved one is charged with any crime, do not hesitate to contact the experienced criminal defense lawyers at Kershaw, Vititoe & Jedinak for your best defense today.