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PARENTAL KIDNAPPING


I. THE PROBLEM
  1. One parent taking the child from the other, either ignoring or not getting any sort of court order.

  2. The U.S. Department of Justice estimates that 150,000 kidnappings by a parent of his or her child occur in the United States each year. Many aren't reported, though, and some studies have said the figure may be over 500,000.

  3. Experts say 90% of parental kidnappings are motivated by desire for revenge against the custodial parent. The child becomes a pawn in the painful game between its mother and father. The child suffers emotionally and psychologically as the parents feud over the child the way they would over a TV set.

  4. Sometimes, the snatching parent really believes an emergency situation exists -- child abuse, incest -- and is motivated to risk prosecution in order to help the child.

  5. A good example of how complicated these fact situations can be is the Elizabeth Morgan case that got a lot of publicity in 1989. Dr. Elizabeth Morgan was a 42-year-old plastic surgeon. She sent her 5-year- old daughter Hilary into hiding, probably with the child's grandparents, outside the state, rather than comply with a court order for the child to continue unsupervised visits with her father, Dr. Morgan's ex-husband, 44-year-old Eric Foretich, an oral surgeon, who Elizabeth Morgan claimed had repeatedly raped the child. Dr. Morgan spent 25 months in jail for contempt of court for refusing to reveal the whereabouts of her daughter, but was apparently not prosecuted criminally.

  6. Another example -- In 1984, an ex-deputy sheriff from Madison County, Illinois, had been named the father of a 4-year-old girl in a paternity action. Once the blood test confirmed he was the father, he wanted to become more involved in the life of his daughter. He visited her several times during October, and finally, on the spur of the moment, decided to take her back with him to his new home in Las Vegas, where he was a security guard at a casino. He went to the home of the mother and child, scooped her up in her nightclothes, and carried her to his car, with the mother following, objecting. He locked the car doors and drove off. He told his mother: "I can't in good conscience have my daughter grow up like that -- filthy, etc." The mother had two other children, and vigorously denied that her home was dirty or in any way unfit. She did not have enough money to hire a lawyer, though. Nor did she have enough money to buy the same things for the child the father could buy. She was distraught. The Madison County prosecutor filed child abduction charges against the father, who immediately filed a civil child- custody case in Las Vegas when he got out there. The mother, a waitress, was separated from her daughter for 10 months while Illinois and Las Vegas quarrelled over jurisdiction. I don't know how the case turned out. The facts are from a newspaper article at the time. The case shows how painful the situation can be.

II. THE CRIMES
  1. INTERFERENCE WITH CUSTODY - 565.150 - (1979) -

    1. A person commits the crime of interference with custody if, knowing that he has no legal right to do so, he takes or entices from legal custody any person entrusted by order of a court to the custody of another person or institution.

    2. Interference with custody is a class A misdemeanor unless the person taken or enticed away from legal custody is removed from this state, detained in another state or concealed, in which case it is a class D felony. A class A misdemeanor carries up to one year in jail. A class D felony carries up to five years in prison.

  2. EXAMPLE - State v. Edmisten, 674 S.W.2d 576 (Mo. App. 1984).

         Larry Allen Edmisten and his wife were divorced and an amendment to their Decree of Dissolution granted legal custody and care of their two children, ages 5 and 3, to their mother. The divorce degree gave the father visitation and temporary custody rights on the first and third weekends of each month. On those weekends he was to pick up the children at the mother's house in Cape Girardeau on Friday evening between 5:00 and 6:00 p.m. and return them on Sunday evening between 6:00 and 7:00 p.m.
         On Friday, November 5, 1982, he picked up the children and did not return them on Sunday. On Thursday, November 11, 1982, the mother contacted the police. A misdemeanor warrant for Edmisten's arrest was issued. On November 13, 1982, the mother and two deputies retrieved the children from Edmisten's home in Anderson, Missouri, approximately 300 miles from Cape Girardeau.
         Judge Marybelle Mueller found Edmisten guilty of the misdemeanor of interference with custody. She fined him $500, but suspended $400 of the fine and placed him on probation for 2 years. The case was affirmed on appeal.
         The appellate court affirmed Judge Mueller's ruling that failure to return the child after expiration of the visitation rights constituted a "taking" under the meaning of the statute 565.150.

  3. EXAMPLE -

    Inez is an incompetent confined to a mental institution by court order. Her husband sneaks her out of the institution and drives her to the next state. He is guilty of interference with custody. Since Inez was removed from the state, the crime is a class D felony.

  • PARENTAL KIDNAPPING - 565.153 - (1988) -

    1. In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to the child.

    2. Parental kidnapping is a class D felony.

    3. A subsequently obtained court order for custody or visitation shall not affect the application of this section.

    4. EXAMPLE - John and Mary are separated, but neither has filed for divorce and no court order exists concerning custody of the 6-year-old child. Mary has been keeping the child with her since the separation, letting John visit whenever he wants. John takes the child with him to Columbia Missouri without the permission of Mary, and starts living with the child in Columbia, and tells her that if she wants the child back she'll have to come to Columbia and resume living with him. He had not told her he was taking the child to Columbia. He had said they were going to a movie. He refuses to bring the child back to Mary for visits. THIS COULD BE FILED AS PARENTAL KIDNAPPING IF THE PROSECUTION CAN PROVE HE TOOK THE CHILD WITH THE INTENT TO DEPRIVE THE MOTHER OF CUSTODY, WHICH PROBABLY CAN BE DONE BECAUSE OF HIS LIE TO HER AND HIS STATEMENT THAT SHE'LL ONLY GET THE CHILD BACK IF SHE COMES TO LIVE WITH HIM, AND BECAUSE OF HIS REFUSAL TO BRING THE CHILD BACK FOR VISITS.

    5. Same facts as above, except that John called Mary immediately when he got to Columbia, said he would pay her bus fare and a motel room any time she wanted to come visit the child, and he filed a child custody petition in Cape Girardeau County Circuit Court the same day requesting that custody be awarded to him. NO CHARGE. WE COULD NOT PROVE INTENT TO DEPRIVE MARY OF A CUSTODY RIGHT SINCE HE IS ALLOWING VISITATION AND HAS IMMEDIATELY FILED A CIVIL PETITION FOR CUSTODY.

    6. George and Barbara are married and have a 4-year- old child. They live in Cape. Barbara leaves George and goes to California, taking the child, and when he protests that he will never be able to afford to visit the child, she says, "Tough." SHE HAS COMMITTED PARENTAL KIDNAPPING.

  • CHILD ABDUCTION - 565.156 - (1988) -

    1. A person commits the crime of child abduction if he or she:
      1. Intentionally takes, detains, entices, conceals or removes a child from a parent after being served with process in an action affecting marriage or paternity but prior to the issuance of a temporary or final order determining custody;
      2. At the expiration of visitation rights outside the state, intentionally fails or refuses to return or impedes the return of the child to the legal custodian in Missouri.
      3. Conceals, detains, or removes the child for payment or promise of payment at the instruction of a person who has no legal right to custody.
      4. Retains in this state for thirty days a child removed from another state without the consent of the legal custodian or in violation of a valid court order of custody; or
      5. Having legal custody of the child pursuant to a valid court order, removes, takes, detains, conceals or entices away that child within or without the state, without good cause, and with the intent to deprive the custody or visitation rights of another person, without obtaining written consent as is provided under Section 452.377, RSMo.
    2. Child abduction is a class D felony, with a maximum sentence of up to five years in prison.

    3. EXAMPLE - Alan and Christy are separated and she is caring for the couple's small child. Alan is served with dissolution papers, picks up the child from school and drives to his parents' house. HE HAS COMMITTED CHILD ABDUCTION AND/OR PARENTAL KIDNAPPING.

    4. EXAMPLE - Gary and Donna had a tryst and Donna had a child. When Gary is filed with paternity papers he goes to the babysitter's house where Donna had left the child and takes the child home with him. No temporary nor final order concerning the paternity case had yet been entered. GARY HAS COMMITTED CHILD ABDUCTION.

    5. EXAMPLE - Jim and Emily are divorced. The dissolution degree gives Jim, who has moved to Illinois, weekend visitation rights. Jim has taken the three young children on his weekend visitation, and now refuses to return them to Missouri. JIM HAS COMMITTED CHILD ABDUCTION.

    6. David and Sally have separated, but are not divorced, nor is a divorce yet filed. They have two children, aged 9 and 5. David's mother hates Sally, and has David's brother Jack hide the children at his house so Sally won't be able to find them, and offers to pay Jack for keeping the kids. David is aware of what his mother is doing, and knows where the children are but tells Sally he doesn't. DAVID HAS COMMITTED PARENTAL KIDNAPPING. JACK HAS COMMITTED CHILD ABDUCTION, BUT COULD ALSO BE CHARGED WITH AIDING AND ABETTING PARENTAL KIDNAPPING. GRANDMA COULD BE CHARGED WITH AIDING AND ABETTING THE PARENTAL KIDNAPPING. GRANDMA AND JACK COULD ALSO BE CHARGED WITH MISDEMEANOR ASSISTING IN PARENTAL KIDNAPPING.

    7. Ed and Mary are divorced, and Ed has custody of the two young children. Ed and Mary were divorced in Kansas. Ed still lives in Kansas, but Mary has moved to Cape. She has the kids for visitation and now refuses to return them, in violation of the Kansas order. She has had them for 30 days. MARY HAS COMMITTED CHILD ABDUCTION.

    8. Larry and Patricia are divorced, and both live in Cape. Patricia has custody of the two children and Larry has weekend visitation rights. Patricia has decided to move to California to marry a sailor, and she takes the children with her, without Larry's permission and without a court order. She tells Larry he can still visit the kids on weekends anytime he wants to, just come on out to San Diego to do it. SHE HAS COMMITTED CHILD ABDUCTION.

  • ASSISTING IN CHILD ABDUCTION OR PARENTAL KIDNAPPING - 565.165 - (1988)

      1. A person commits the crime of assisting in child abduction or parental kidnapping if he:

        1. Before or during the commission of a child abduction or parental kidnapping as defined in section 565.153 or 565.156 and with the intent to promote or facilitate such offense, intentionally assists another in the planning or commission of child abduction or parental kidnapping, unless before the commission of the offense he makes proper efforts to prevent the commission of the offense; or

        2. With the intent to prevent the apprehension of a person known to have committed the offense of child abduction or parental kidnapping, or with the intent to obstruct or prevent efforts to locate the child victim of a child abduction, knowingly destroys, alters, conceals or disguises physical evidence or furnishes false information.

      2. Assisting in child abduction or parental kidnapping is a class A misdemeanor, with a maximum sentence of up to one year in the county jail.

    1. EXAMPLE - Grandmother knows that her son, David, has left Cape Girardeau with his small child after being served with divorce papers by his wife, Debbie, the mother of the child. Grandmother knows David is planning to hide out with the child in Branson, Missouri, but lies to Debbie, saying she has no idea where David or the child are. GRANDMOTHER HAS COMMITTED THE MISDEMEANOR OF ASSISTING IN CHILD ABDUCTION. SHE COULD ALSO BE CHARGED, POSSIBLY, AS AIDING AND ABETTING THE FELONY OF CHILD ABDUCTION.

    III. TAKING CUSTODY OF THE CHILD.

    1. 565.167 (1988) -- A peace officer investigating a parental kidnapping or related case may take the child into temporary protective custody if it reasonably appears to the officer that any person unlawfully will flee the jurisdictional territory with the child. If the child is found in the custody of the defendant or another person, the officer shall return the child to the parent or legal custodian from whom the child was concealed, detained or removed, unless there is good cause for the officer to retain temporary protective custody of the child under 210.125.

    2. 210.125 (1975) -- A police officer who has reasonable cause to believe that a child is suffering from illness or injury or is in danger of personal harm and that a case of child abuse or neglect exists, may request that the juvenile officer take the child into protective custody.

    IV. INVESTIGATIVE TIPS FOR LAW ENFORCEMENT OFFICERS:

    1. Always get copies of any court orders involved, and get a copy of the entire court file, when possible.

    2. Always encourage the victim to get a private lawyer, too, since there are some civil remedies they could be simultaneously be pursing (habeas corpus, modification of custody orders, action for damages for interference with custodial rights, contempt of court action).

    3. Always interview all family members, of both the custodial parent and the snatching parent. Pin them down on what they saw and heard and know. Someone who knows the truth as to the child's whereabouts might tell the truth.

    4. Once your felony warrant is obtained, if you still haven't found the child, contact the FBI about getting a Federal Fugitive Warrant issued. Also ask for federal help from the Federal Parent Locator Service. Also be sure the warrant and the child's name are entered in the FBI's National Crime Information Center computer. The Armed Forces Worldwide Locator Service might be helpful if applicable.

    5. Question the remaining custodial parent (victim) about any allegations the snatching parent might try to raise of child abuse or neglect. Examine house, etc., so you will be able to comment about its condition, etc, if raised.

    6. Contact babysitters, day care, schools, etc., for information about the abduction and the child and any information about the suspect or his whereabouts.

    7. Keep in mind search warrants for evidence as a possible tool.

    V. PROSECUTION -

    1. We will file and prosecute these cases. Dispositions will often end up being fines or probation, except in extreme cases. Sometimes, if the child is returned quickly and everyone is happy, we may decide not to file the criminal charge. Once we file it, we will normally not dismiss it, but might do so if the child was promptly returned.

    2. In most cases, we will send a warning letter to the snatching parent, prior to filing a criminal charge, informing him or her of the parental kidnapping laws and risk the snatcher is running of being prosecuted if the child is not returned. Obviously, warning letters would not be sent in extreme cases.

    3. In parental kidnapping cases the prosecutor's office has three goals: (1) Get the child back for the custodial parent as quickly as possible; (2) Prosecute the violator for the crime committed; and (3) Protect the physical safety of the child.

    V. CONCLUSION -

    The Missouri Legislature and United States Congress have decided that police and prosecutors should be more involved in these cases. The victim should not be told it is just a civil matter. The victim should not be forced to hire an expensive lawyer to find and retrieve the child. Every law enforcement officer and prosecutor should know theses laws well, and be prepared to implement them on short notice in emergency situations.

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