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Sample Memorandum: Interference with Child Custody

by Erik L. Smith


TO: Joe Attorney, Esq.
FROM: Erik Louis Smith
DATE: February 22, 2002
RE: Woodward Allen; Interference with custody

ISSUES

Woodward Allen's fourteen-year-old daughter, Shee'Lai, asked Allen to let her stay with him to protect her from her adoptive parents. Allen complied and took Shee'Lai in. Shee'Lai refused to go to Franklin County Children's Services (FCCS) because, according to Shee'Lai, FCCS had not helped her before. Four days later, after Allen twice attempted unsuccessfully to contact Shee'Lai's adoptive parents, Allen notified FCCS that he had taken Shee'Lai in.

Did Allen interfere with custody under R.C. 2919.23(B)?

If so, can Allen likely plea-bargain?

BRIEF ANSWER

Allen probably interfered with custody. A non-parent who knows a child has run away must, within a reasonable time, notify law enforcement or judicial authorities that he has the child. Even believing Shee'Lai's claims about FCCS and the adoptive parents, Allen could have notified police or FCCS to discuss a solution long before the fourth day he had Shee'Lai. Thus, a court will probably not see four days as "reasonable," and Shee'Lai's refusal to go to FCCS, while relevant, will not control. Allen had to follow the law applicable to non-parents. And that Allen tried to take Shee'Lai back to the adoptive parents before contacting FCCS will oppose an argument that Allen feared for Shee'Lai's safety.

Allen will likely be in good position to plea down because his behavior was not ill intended, reckless, or premeditated, like the behavior of the defendant in the only other Ohio case involving R.C. 2919.23(B). There, the state let a mother who unilaterally stole her children from the temporary custodian plea down to disorderly conduct.

FACTS

Several years ago, our client, Woodward Allen, gave his daughter, Shee'Lai, up for adoption. Shee'Lai is now fourteen.

On Saturday night, Allen received a call from Shee'Lai telling Allen she had run away because her adoptive parents, the Farrows, beat her and used drugs. Allen told Shee'Lai to come to his house. Shee'Lai did.

Over the weekend, Allen did not notify Franklin County Children's Services or the police because Shee'Lai had twice complained to FCCS unsuccessfully about being abused by the Farrows, and because Shee'Lai refused to return to the Farrows. Instead, on Monday, Allen asked one of Shee'Lai's former foster parents for advice. That person told Allen he needed to return Shee'Lai to the Farrows immediately.

So Allen called the Farrows and, by voice mail, told them he had Shee'Lai. The Farrows never returned the call. On Wednesday, Allen took Shee'Lai to the Farrows' house, but found no one home. Because Shee'Lai refused to stay at the Farrows or to go to FCCS, Allen took Shee'Lai back to his house. The next day, Thursday, Allen delivered Shee'Lai to FCCS.

On Thursday, the Farrows reported Shee'Lai's disappearance to the police. The police left a card on Allen's door telling Allen they wanted to speak with him. The police alleged they placed the card on Allen's door before Allen took Shee'Lai to FCCS. Allen alleged he did not see the card until after taking Shee'Lai to FCCS. The state charged Allen with violating ORC § 2919.23(B), which read:

"No person shall aid, abet, induce, cause, or encourage a child who has been committed to the custody of any person…to leave the custody of that person without legal consent."

DISCUSSION

Interference with custody

A court will likely find Allen interfered with custody because four days was not a reasonable time for Allen to wait before notifying FCCS that he had taken Shee'Lai in.

A non-parent may take a child in if he honestly believes the child's safety requires it. R.C. § 2919.23(C). Where a person gives shelter to a child whom he honestly believes is a runaway, that person will not be guilty of keeping or harboring the child if he promptly, or within a reasonable time, notifies law enforcement or judicial authorities. R.C. § 2919.23(C); Summary of Am Sub HB511 by Ohio Legislature Service Comm p. 46.

The legislature has not defined "promptly" or "reasonable" and only one Ohio case has involved R.C. 2919.23(B). State v. Adkins, 1989 WL 154738 (Ohio App. 12 Dist.) Adkins did not analyze the elements of 2919.23 (B) because the defendant pled guilty to a lesser offense. Id. And no cases involving 2919.23(A) parallel Allen's situation.

Still, the facts show that four days was not prompt or reasonable, even accepting Shee'Lai's claims about FCCS. Allen could have predicted that Shee'Lai's act of seeking refuge with Allen, and refusing to return home, would motivate FCCS to act more aggressively toward the Farrows than it had acted before. Even if not, Allen knew FCCS was the only legal way to protect Shee'Lai. And Allen's attempts to return Shee'Lai to the Farrows before contacting FCCS showed that Allen did not seriously fear for Shee'Lai's safety with the Farrows.

Even empathizing with Allen, Allen's delay in contacting FCCS makes one suspect he went through the motions of contacting the Farrows to create an alibi for any eventual charge. And that the Farrows forbade contact between Allen and Shee'Lai showed a motive by Allen to encourage Shee'Lai to leave the Farrows. That Shee'Lai initiated the contact, refused to go FCCS, and was safe with Allen while Allen kept her, will not control. State v. Kinney, (1982), 7 Ohio App.3d 243 (1 Dist.) (Whether the minor consents to be harbored by the accused is not controlling; all that matters is whether the perpetrator aided or encouraged her to do it. (A man convinced his minor girlfriend to move in with him without consulting the girl's parents.)) As a non-parent, Allen had to notify authorities promptly.

One fact favoring Allen is that the Farrows did not call him or the police after receiving Allen's voice message. One wonders where the Farrows were between Monday and Thursday? Or, if the Farrows called the police on Monday, after getting the message, why did the police wait until Thursday to contact Allen? Did everyone believe Shee'Lai was safe?

Excluding facts potentially arising from those questions, a court will probably find that Allen interfered with custody because he could have called FCCS much sooner than he did.

Allen's ability to plea bargain

Allen can likely plea bargain because his behavior was not ill intended or reckless, but, at most, an opportunistic response to a child's plea.

Only one case has involved R.C. 2919.23(B), that being State v. Adkins, 1989 WL 154738 (Ohio App. 12 Dist.). There, the County Children's Services placed a mother's children with their grandmother pending a hearing on abuse and dependency complaints against the mother. Before the hearing, the mother went to the grandmother's house and repossessed the children. The State charged the mother under R.C. 2919.23(B), but ultimately let her plea to disorderly conduct. The mother's actions had caused the parties "inconvenience and alarm." Id.

Adkins parallels Allen's case only in terms of the charge. Otherwise Allen's situation is the inverse of Adkins. Allen did not go to the Farrows' house and repossess Shee'Lai unilaterally, but encouraged Shee'Lai to come to his house after Shee'Lai contacted him. FCCS did not remove Shee'Lai from Allen's home because of abuse or dependency by Allen. Instead, Shee'Lai was forced to leave the Farrows' home to go to Allen because of alleged abuse and dependency by the Farrows. And the police did not forcibly remove Shee'Lai from Allen; rather, Allen voluntarily returned Shee'Lai to FCCS. Thus, Allen's only real wrongful act was that he did not notify FCCS soon enough. Although the state will not want to excuse Allen's conduct, a prosecutor should see Allen's actions as being somewhat outside the spirit of the statute.

Although Allen likely violated the statute, his conduct differed from the reckless, premeditated, and self-centered actions of the mother in Adkins. Therefore, like the mother in Adkins, Allen should have good leverage to negotiate with the state, perhaps down to disorderly conduct.

CONCLUSION

Allen probably interfered with custody. Even if Shee'Lai's claims about FCCS and the Farrows were true, Allen could have notified FCCS to discuss a solution much sooner than he did. Because Allen's conduct was not the reckless, premeditated, and self-centered actions the legislature probably contemplated when passing the statute, Allen should be able to negotiate with the state about pleading to a lesser charge.

Respectfully submitted,
Erik Smith

Copyright © Erik L. Smith.