Whether A Parent Can, As A Matter Of Law, Kidnap Their Own Child

People v. Leonard  2012 NY Slip Op 04206

New York Court of Appeals Decided May 31, 2012 

Issue: whether it is possible for a parent who has custodial rights to a child to be guilty of kidnapping that child.

Holding: The Court of Appeals held that there comes a point where even a custodial parent’s control over a child’s movements is unlawful.  It is possible, though only in cases like this one, where a defendant’s conduct is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody.

The defendant’s restriction of his daughter’s movements was unlawful; at the time of the crime he did not have “lawful control or custody” of his daughter; and that the unlawfulness was blatant enough to justify the inference that he knew he was acting unlawfully.  As a matter of law then, he did kidnap his daughter.

Legal Analysis: Penal Law § 135.20 say simply: “A person is guilty of kidnapping in the second degree when he abducts another person.” But the statutory definition of “abduct” is more complicated: “‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.”

The statutory definition of “restrain” is more complicated still:

“‘Restrain’ means to restrict a person’s movements intentionally and [*3]unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined ‘without consent’ when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

A final layer of complexity is added by Penal Law § 135.30, which says:

“In any prosecution for kidnapping, it is an affirmative defense that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person.”

 First, the jury had a basis for rejecting the affirmative defense: It could rationally find that defendant’s “sole purpose” was not to “assume control” of the child, but that at least part of his purpose was to prevent his own arrest. Secondly, it is undisputed that defendant threatened to use “deadly physical force” to prevent the police from taking his daughter from him; thus the last part of the definition of “abduct” is not a problem here.

The decisive question is whether defendant “restrain[ed]” the child, according to the statutory definition of that term. Defendant argues that he did not “restrict” her “movements” or “interfere” with her “liberty” because a six-week-old child is not capable of going or remaining anywhere voluntarily. But this argument is untenable: it implies that no infant could ever be kidnapped. A restriction on movement, and an interference with “liberty,” should be deemed to exist whenever the lawful movement of a person, including the lawful movement of a child by adults, is hindered.

Concededly, defendant had, in general, a right to control his child’s movements. But the Court rejected the idea that he could lawfully move or prevent the movement of the child in the way he did here, or that he could give “consent” to his own act in doing so; there comes a point where even a custodial parent’s control over a child’s movements is unlawful, and indeed obviously so.

The Court of Appeals recognized that there were no New York cases that spoke to this issue; they therefore made reference to the law in other states.

In State v Viramontes (163 Ariz 334, 788 P2d 67 [1990]), the Supreme Court of Arizona upheld a kidnapping conviction under a statute that contained a definition of “restrain” much like New York’s. The defendant in that case had put his newborn child in a cardboard box, driven it to a restaurant and abandoned it in a parking lot. The court held that, though the defendant was the child’s custodial parent, he lacked legal authority to “consent” to his own act of abandonment, observing: “under no imaginable circumstances could the legislature have intended that defendant’s . . . taking the child to abandon it be legally authorized”.

In Muniz v State (764 So2d 729 [Fla 2d DCA 2000]), a Florida District Court of Appeal confronted a set of facts almost exactly like ours:  The Muniz court reversed the defendant’s conviction for kidnapping, holding that someone who was a “parent” under Florida law could not be guilty of kidnapping his child when there was no court order depriving him of custody. In a later decision, however, the Florida Supreme Court overruled Muniz and held “that a parent is not exempt from criminal liability for kidnapping his or her own child”

Like the Supreme Courts of Arizona, Florida and Iowa, a kidnapping by a custodial parent of his own child is not a legal impossibility. It is possible, though only in cases, like this one, where a defendant’s conduct is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody.

The Court noted that the holding should not be too readily extended. Not every parent who disciplines a child inappropriately — not even every parent who commits child abuse — becomes a kidnapper when he or she causes the child to move from place to place, or to remain stationary. But when a man holds a knife to his child and threatens to murder her if anyone tries to take her from him, a line has been crossed.

We hold that, on the facts found by the jury with support in the record, defendant’s restriction of his daughter’s movements was unlawful; that he could not consent to it, because at the time of the crime he did not have “lawful control or custody” of his daughter; and that the unlawfulness was blatant enough to justify the inference that he knew he was acting unlawfully.