By: Dennis M. Germain, Michigan Family Law Attorney & Counselor at Law
As a family law and divorce attorney, I encounter clients and potential clients who state:
“The other parent of my child is violating a court order by not allowing me to see my child(ren). Is this a crime? Is this considered kidnapping?”
MICHIGAN’S PARENTAL KIDNAPPING/TAKING LAW
When it comes to wrongful withholding of parenting time or custodial rights in the criminal context, at issue is the so-called “parental kidnapping” or “parental taking” law in the Michigan Penal Code at MCL 750.350a. Specifically, MCL 750.350a(1) states that:
“An adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights under a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.”
It is my view that, based on the plain language of the above-listed sub-section, when two parents’ custody or parenting time is governed under an existing court order, and one parent, without a valid legal defense,* withholds parenting time from the other parent (during the other parent’s ordered parenting time) for longer than 24 hours and says:
“I will not let you see our child(ren)…”
…this behavior is parental kidnapping and it is a felony crime under the Michigan Penal Code punishable by up to one year and one day in prison, and/or a fine of up to $2,000.00.**
Any doubts about whether the crime of kidnapping can be applied to a parent (even one with custodial rights) should be dispelled because the Michigan Court of Appeals has supported application of the law to parents.***
UNWILLINGNESS OF POLICE & PROSECUTORS TO ENFORCE LAW
Despite ostensible legislative and higher judicial affirmation, this author has found that local police departments, prosecutor offices, and city attorney offices are typically unwilling to enforce MCL 750.350a by pursuing arrest and criminal charges against a parent who wrongfully conceals the child(ren) from the other parent. Parents regularly call the police for help when wrongful parental takings and retentions occur. But I have yet to find a local police officer or prosecutor who would be willing to pursue arrest and criminal charges under MCL 750.350a.
ENFORCEMENT IN FAMILY COURT
Instead, relief against one parent’s blocking of the other parent’s access of their child(ren) is typically found at the civil level in the family division of the court. Unfortunately, family courts are not always prompt in offering relief to the non-violating parent (and the child(ren)). Typically, the attorney of the non-violating parent is required to file a motion for order to show cause or motion to enforce custody/parenting time order.
Possible remedies that the family court might offer the non-violating party include but are not limited to the following:
-Enforcement of the custody/parenting time order;
-Issuance of a finding of contempt
-Compelling the violating parent to pay the non-violating parent’s attorney fees and costs;
-Issuance of make-up parenting time; and/or
-Ordering of coercive or conditional jail time;
It should be noted that some family law judges are reluctant to dispense serious sanctions, particularly in the case of first time offenders of wrongful withholding of parenting time.
Additionally, in post-judgment cases, when the family has a caseworker assigned, the Friend of the Court might offer assistance to the non-offending parent.
END.
* MCL 750.350a(7).
** MCL 750.350a(2).
*** E.g., see People v McBride, 204 Mich App 678, 516 NW2d 148 (1994); People v Harvey, 174 Mich App 58, 435 NW2d 456 (1989). Also see M Crim JI 19.6 (Michigan Model Jury Instruction, prepared by the Committee on Model Jury Instructions).
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Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters. ******************************************************************************
I am Dennis M. Germain, a family law attorney who promotes fair resolutions to domestic relations matters. I primarily practice in Wayne County, Macomb County, and Oakland County, Michigan. My office and contact information is listed as follows:
www.bestinterestlaw.com
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404
Email: Dennis.Germain@BestInterestLaw.com
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