In Minnesota, there are two very distinct forms of kidnapping. One involves holding an adult against their will, often as part of a larger crime. However, kidnapping cases involving children are far less commonly violent or even thought of as criminal at the time because the defendants are most often divorced parents or relatives who feel that they are doing the best thing for the child or are afraid of losing parental access to their own children. If you are a parent in an unpleasant custody dispute with your ex or a relative with legal guardianship, you could easily find yourself on either side of a custody-based kidnapping case.
Of course, while custody battles are the most common source of child kidnapping cases, there are also a significant number of defendants who are friends, older siblings, and well-meaning neighbors who have found themselves harboring a child who doesn’t want to go home. This is often an incredibly difficult situation to deal with because you don’t want to send the child, your friend or relative, back to an unpleasant home.
The good news is that there are several legally established and actionable defenses for child kidnapping cases and they are understanding of both sets of complex and often emotionally painful situations.
If the Child Was at Risk
Though legal custody is something the court acts on firmly, the law also acknowledges your right and duty to keep a child safe from a situation that you reasonably believe could be physically, sexually, or emotionally harmful. If you have proof or was told by the child that going home could result in abuse, this is a strong defense against a charge of kidnapping.
However, the longer you harbor the child, the less this argument applies. Ideally, you will have called child protective services and/or CPS in this situation, but it’s understandable if this didn’t occur to you in the moment or if there was a reason this seemed like a bad idea.
If You Were at Risk
It is also an actionable defense if you believed that you were in physical danger while the child was with you. If you flee or hide with a child in order to keep yourself safe and in effect also keep the child safe, this is considered an understandable if unfortunate situation. This defense is commonly seen with battered parents who flee with their children and their spouse then files a denial-of-custody kidnapping charge against them while they are in flight or hiding. You may also reasonably fear for your safety if you have received threats since the child entered your temporary control or home.
If You Had Temporary Permission from a Guardian
Another complication in child kidnapping cases is just how many people are, at least temporarily, allowed to be in control and partial guardianship of the child. Relatives, stepparents, family friends, teachers, babysitters, older siblings, and slightly older friends may all have express permission from the parents to be taking care of the child for temporary but unspecified periods of time.
This creates a defense of plausible guardianship where you could have easily felt that you were not denying anyone custody because you had permission to take care of the child. As long as you did not actively run away, conceal the child, or engage in any criminal activity during the time labeled ‘kidnapping’, the situation is likely to be seen as overstepping undefined boundaries of permission rather than active and malicious kidnapping.
If Your Actions Were Previously Authorized by a Court
There are other situations where you might be accused of kidnapping and even charged with it while obeying a previous ruling of the court. This SNAFU occurs because police don’t psychically know all current court rulings. The rest is either misunderstanding about the current custody agreement getting blown out of proportion or occasionally a half-baked plan to either punish an ex for going over-time or frame them for kidnapping during their legally established time with the kids. This may also apply to guardians who have been granted a certain amount of access and can link to the point above about limited permission to care for a child.
Your Best ‘Get Out of Jail Free’ Card
Of course, if the kidnapping incident has not yet been resolved or you are currently in the middle of this situation and researching the possible outcomes, your best answer is to return the child before 48 hours have passed. If you hand the child over to an accepted authority, and this does not have to be their legal guardian, the This single clause is the desperate parent and the runaway harborer’s best friend because it gives you time to assess the situation, settle the child down if something upsetting has occurred, and make a decision about who to contact with the situation.
If you find harboring a child whose legal home may be dangerous to them, you can call the police, social services, and/or a lawyer. Whoever you think will be the most effective and sympathetic to the situation. When choosing who to call, be aware of the situation. Social services can start a long-term investigation on homelife and may have temporary child housing available but are more likely to return children directly to a current foster parent. The police, on the other hand, are prepared to deal with an immediate threat of violence or retaliation but don’t have anywhere to put a child.
As long as you get the child back into the care of a legally authorized guardian within 48 hours with no harm to the child or other criminal behavior, the charge of kidnapping can be completely dismissed.
What to Do If You Have or Could Be Charged with Kidnapping
Kidnapping a child is not a minor offense, even though it is common and usually does not result in harm. The small percent of cases where children are neglected, abused, and put in harm’s way is enough to make the police and courts take every kidnapping charge very seriously. If you have been charged with kidnapping a minor or have found yourself in a situation where this is a possibility, seek legal advice and representation. For more information about how to handle a kidnapping charge in Minnesota, contact us today.
Posted 7th May 2018 by DeVore Criminal Defense