Can a Parent be guilty of “interference with custody?”

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I am often asked if a parent can be criminally prosecuted for their failure to return a child to the other parent at the end of parenting time.  As with many answers, it depends.  “Interference with custody” is a crime in Ohio and is defined in R.C. 2919.23 which states:

(A) No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor [a child under the age of eighteen], * * *  from the parent, guardian, or custodian of the person * * *

(C)  It is an affirmative defense to a charge of enticing or taking [of a child under the age of eighteen], that the actor reasonably believed that the actor’s conduct was necessary to preserve the child’s health or safety. It is an affirmative defense to a charge of keeping or harboring under division (A) of this section, that the actor in good faith gave notice to law enforcement or judicial authorities within a reasonable time after the child or committed person came under the actor’s shelter, protection, or influence.

The first thing that people should be aware of is that parents are not often prosecuted under this statute.  In most cases, is a useful statute for prosecuting people who harbor runaway or wayward children not their own in violation of a parent or parents’ custody rights.  For example, if Jill, a fourteen year old girl, runs away from home to live with her neighbor Barry and Barry doesn’t notify and return her to her parents, Barry may be guilty of interference with custody.  Nowhere in the statute does it require Barry to do anything to harm Jill (if he does he’s probably guilty of a lot more than interference with custody).  It’s also not relevant if Jill acquiesced to staying with him.  She’s a minor and doesn’t generally get a say in the matter.  The offense was against the rights of Jill’s parents.  If Barry felt Jill was in danger from her parents, guardian or custodian, R.C. 2919.23(C) states that he must notify law enforcement within a reasonable time. 

What happens; however, when one parent, keeps a child away from the other parent?  Can the offending parent be charged and convicted of interference with custody?  Most parents know that they can seek a finding of “contempt” from the domestic relations or juvenile court that issued a parenting time order for violations of said order by a party to the case.  Let’s say that Joe sends his kids with their Mother Mary for a weekend.  The parenting time order requires the kids to be returned by 7 p.m. on Sunday, but Mary refuses to return them or release them to Joe when he arrives at her home. 

This is similar to the situation in State v. West, a 2002 case out of Highland County.  State v. West, 2002-Ohio-2114.   In February of 2001, the Mother, Evelyn West, the non-residential parent, took her two sons for a weekend visit and failed to return them to their father on Sunday in contravention of the court’s parenting time order.  The father attempted to pick them up and was unsuccessful so he obtained a court order directing  Evelyn to return the children and eventually enlisted the aid of the police who had to obtain a search warrant to find the children at their mother’s home.  Needless to say, the officers were less than thrilled and arrested Evelyn.  Id at ¶8-10.  Evelyn was charged with interference with custody and was found guilty. 

On appeal, Evelyn argued, among other things, that she could not have “knowingly” or “recklessly” kept the children because she was not aware of the return order the Father had obtained.  The court found her argument “specious” as Evelyn was clearly well aware of the terms of her parenting plan.  Id. at ¶18.

What happens however, if unlike Evelyn West, who was a non-residential and thus lacked “legal custody” of her children, the parents have a shared parenting plan?  In State v. Sprinkle the Mother, Johnnetta Sprinkle, took her children to Kentucky on a family trip.  State v. Sprinkle, 2007-Ohio-4967, at ¶2-4.  She failed to return the children in time for their father’s parenting time on July 18, 2005, and the Father contacted the police on July 22, 2005.  Id.  She returned on July 25, 2005 and was charged with interference with custody.  She was convicted at trial.  On appeal Sprinkle argued that as a party to a shared parenting plan, she by definition had “custody” of her children at all relevant times and thus R.C. 2919.23 did not apply to her. 

The Ohio Court of Appeals for the Twelfth District found Sprinkle’s argument to be “without merit.” Id. at ¶42.  The Court held that Sprinkle’s “natural privileges regarding custody were limited by court ordered agreement” (the shared parenting plan).  Id. at ¶43.  Sprinkle’s conviction was affirmed. 

In a case out of Lucas County Ohio, the Ohio Court of Appeals for the Sixth Appellate took R.C. 2919.23 even further and found that the sole custodial parent could be found guilty of interference with custody by usurping the parenting time of the other parent who had no custody rights, but rather only visitation.  Toledo v. Parra, 2013-Ohio-3182.  In this case, the custodial mother was charged under the Toledo Municipal Code with its interference with custody statute which is, for all relevant purposes, identical to the statute in the Ohio Revised Code.  Id. at ¶8. 

After being convicted the Mother, Mary Parra, appealed and claimed that the use of the word “custody” in the title of the statute means that she could not be convicted as the Father, who had parenting time only, did not have any custody rights for her to interfere with.  Id. at ¶9.  The Court rejected this argument.  Under R.C. 1.01, the court held that “Title, Chapter, and section headings * * * do not constitute any part of the law as contained in the Revised Code,” and that “considering a statute’s title in ascertaining its meaning is “unnecessary and improper.” Id. quoting State v. Beener, 54 Ohio App.2d 14, 16, 374 N.E.2d 435 (2nd Dist. 1977).  Instead the Court looked at the language of the statute / ordinance itself which does not mention “custody” outside of the title.  The Court found that Parra, (1) acting with knowledge that she is without privilege to do so; (2) took and kept; (3) a child under the age of eighteen; (4) from his or her parent and thus affirmed her conviction. 

Do these cases mean that you should fear criminal prosecution if you are late or returning the children or have a dispute with the other parent over parenting time?  Probably not.  These Mothers clearly knew that they were in violation of their court orders.  It can also not be overlooked that the aggrieved fathers in these cases all found sympathetic law enforcement officials.  Often police officers are loath to interpret a Court’s order regarding parenting time.  Parents are usually told to “talk to their lawyer” or “file a Motion for Contempt [of the Court’s Order].” In most cases that I what you’ll hear. 

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