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93.4 Child Abduction

    93.4.3 Child Abduction: Defenses And Defense Theories

    93.4.3.1 Child Abduction: Belief In Necessity To Preserve Child’s Safety Or Welfare As Defense Theory
    93.4.3.2 Child Stealing: Defense Of Double Jeopardy Based On Prior Contempt Conviction
    93.4.3.3 Child Abduction: Applicability Of Defenses To Kidnapping
    93.4.3.4 Child Abduction: Additional Defenses And Defense Theories

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RATIONALE: Criminal intent is lacking if the defendant took the child with a good faith belief that it was necessary to protect the child from physical or emotional abuse.

POINTS AND AUTHORITIES: In some jurisdictions child stealing is not committed if the defendant had a good faith belief that taking the child was necessary to preserve the child's safety of welfare. (See e.g., People v. Dewberry (CA 1992) 8 CA4th 1017, 1020-21 [10 CR2d 800]; see also People v. Schuett (CO 1991) 819 P2d 1062, 1065 [element of kidnapping that the seizing and carrying away of a person be without lawful justification must be proved beyond reasonable doubt]; State v. Niska (MN 1994) 514 NW2d 260, 265 [1985 version of statute, which criminalizes the deprivation of custodial, parental, or visitation rights, requires the state to disprove beyond reasonable doubt the defense that defendant did not believe that deprivation was taken to protect the child from physical, sexual, or emotional abuse, and defendant need only produce sufficient evidence to make the statutory defense an issue in case].)

    Although a reasonableness requirement is included, in many jurisdictions the Model Penal Code rejected the argument that the good faith belief should be reasonable: "When writing the Model Penal Code ...the ALI drafters rejected weighty arguments that the defendant’s belief ought to be reasonable. The rationale was that the defense will usually come up when the crime is charged against a parent or other person interested in the child’s welfare. It seems inhumane for a penal code to hold such a person to a standard of reasonableness when the person honestly believes that what he is doing is necessary to preserve the child from danger. It is probably wiser to control the adversaries, in what is essentially a custody dispute, through court orders and contempt power. (See ALI, Model Penal Code and Commentaries, §212.4, comment 3 at 259-61 (1980)."  (PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.2904D note [Defenses To Interfering With Custody Of A Child] p. 1 (Pennsylvania Bar Institute, PBI Press, 09/95).) However, a reasonableness requirement may be required. (See Sample Instructions below.)

    See also FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.1 [False Imprisonment/Kidnapping].

   In order to prove this crime, each of the following elements must be proved:

    1.      No court had made an order determining the rights of custody or visitation to a minor child;

    2.      A person, having a right of custody of that child, took, detained, concealed, or enticed away the child;

    3.      That person acted maliciously;

    4.      That person acted without good cause; and

    5.      With a specific intent to deprive [another person] [or] [a public agency] of [his] [her] [its] custody rights to the minor child.

    "Good cause" means a good faith and reasonable belief that the taking, detaining, concealing, or enticing away of the child is necessary to protect the child from immediate bodily injury or emotional harm.

[See generally People v. Dewberry (CA 1992) 8 CA4th 1017, 1020-21 [10 CR2d 800]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 9.70.5 [Child Abduction-Person With Custody Right-No Court Order In Effect] (West, 6th Ed. 1996).]

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    93.4.3.2    Child Stealing: Defense Of Double Jeopardy Based On Prior Contempt Conviction

PRACTICE NOTE: A prior contempt conviction may bar subsequent prosecution of father for interference with child custody. (See e.g., Ex Parte Rhodes (TX 1998) 974 SW2d 735, 739.)

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    See FORECITE National™ 93.1.3 [Simple Kidnapping: Defenses And Defense Theories].

    See FORECITE National™ 93.2.3 [Aggravated Kidnapping: Defenses And Defense Theories].

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    93.4.3.4    Child Abduction: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)