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Update - Volume 11, Number 4, 1998
Prosecuting Parental Kidnapping
By Susan S. Kreston, Senior Attorney
The recent case of Stephen Fagan, currently charged with kidnapping and concealing his two daughters from their mother for 19 years, has focused public attention on parental kidnapping. It is the State’s contention that after taking the children, Fagan fled to another state where he changed the girls’ identities and told them their mother had been killed in an auto accident.1 While the particularly egregious facts in the Fagan case have attracted the media’s attention, parental kidnapping is not an unusual occurrence. Approximately 354,000 children are kidnapped annually in the United States by one of their parents.2 To effectively combat this crime, prosecutors need to be aware of the dynamics of parental kidnapping, the common defenses raised and be prepared to use expert testimony to assist the judge and jury in understanding the offense and its consequences.
Parental Kidnapping Dynamics
The dynamics of this crime are complex. There is no typical kidnapper. Both genders, all races and all socio-economic strata are represented. Kidnappings are, however, more likely to occur at particular times: when the relationship begins to disintegrate; immediately before or after the custody decision or; when one parent becomes involved with a new partner. In many cases the abductor claims that he or she abducted out of concern for the child’s physical or psychological health and safety. The legitimacy of this claim of "necessity" must, however, be evaluated against the backdrop of reasonable, legal alternatives to the kidnapping. These include such actions as informing social services of alleged mistreatment or bringing the allegations to the attention of the courts who could then decide the truth or falsity of the claimed maltreatment.
Criminal Law and the Defense of Necessity
Parental kidnapping is not solely a civil or family court matter. Parental kidnapping is a crime. It is recognized as such by every state in the nation.3 Legally, the victims in these cases are solely the searching parents, as it was their parental or custody rights that were violated. Psychologically, both the abducted child and the searching parent are harmed.4 Many psychologists specifically recognize parental kidnapping as a form of child abuse.5 It is also one form of domestic violence. It is estimated that between 10% and 40% of all children who are abducted become severely emotionally disturbed as a result of the abduction.6 The designation of this act as a crime, and not merely a violation of a civil custody decree, recognizes that criminal responsibility for this act is not excused simply because the abductor has a legal or biological relationship to the victims.
A necessity defense claims the abductor was acting out of a desire to keep the child from imminent danger. This defense is usually raised based on the defendant’s allegations of child abuse/neglect or domestic violence. Some states have codified these defenses in their statutes, while others recognize a general necessity defense that may be raised in any criminal case. While the necessity defense may be valid in certain cases, it is very limited in application. If the defendant attempts to present such a defense, case law requires that the defense should fail if there was a reasonable, legal alternative to violating the law, a chance both to refuse to commit the criminal act and to avoid the threatened harm.7
Some states specifically require a defendant raising such a defense take certain statutorily mandated steps after the abduction, such as informing the proper authorities of the reason for the taking and the location of the abductor and the child within a reasonable time.8 Other states specifically preclude raising this type of a defense if the child was taken out of the state.9 The rationale behind these restrictions is that if the abductor is genuinely fleeing to prevent imminent harm to the child, once the imminent danger is removed the abductor must present the case to the proper authorities for a change in the custody decree. Mere disgruntlement with a custody decision is not a legal basis for the unilateral taking of a child.
Reunification
In those cases where the abducted child is found and can be returned to the searching parent, the dynamics of the reunification process must be understood. Reunification is not over when the child is handed back to the searching parent. In actuality, reunification is a long, painful and often disappointing process of recovery for both the parent and child.10
The likelihood of a "successful" reunion will be influenced by a number of variables: length of time of the abduction; intensity of bonding with the abductor; whether "parental alienation syndrome" exists (i.e., programming of the child by telling lies about the searching parent) and; the child’s internalized perception of the need to protect the abductor from the consequences of his or her actions, particularly if there are criminal charges being pursued.11 Children may also have undeserved and unfounded hostility toward the searching parent ("you didn’t try hard enough to find me") which will need to be resolved. This may be exacerbated if the searching parent has entered into new adult relationships or has new children in his or her life. All these issues will have to be dealt with through post-reunification adjustment techniques. Counseling, even for a brief period, is critical and it is vital that all parties concerned realize that it may take a very long time to psychologically heal from the damage the abductor has inflicted.
Expert Testimony
Many judges and jurors may have unrealistic expectations concerning reunification. They will expect the searching parent and the abducted child to welcome each other with open arms. When this doesn’t happen they may be inclined to believe the abducting parent’s version of events and conclude that the searching parent was a bad parent. What else could possibly explain the hostility of the abducted child to the searching parent? Expert testimony is one way to educate the judge and jury about the psychological dynamics of child abduction.
The status of the reunification process should not be an issue for trial, as it is irrelevant to the issue of whether the defendant criminally violated the searching parent’s custodial rights. Any evidence regarding the reunification issue should be excluded at pre-trial by filing a motion in limine. However, if the issue does arise during trial, expert testimony may be used to address the reunification evidence and possibly turn the issue to the state’s benefit. Specifically, a prosecutor can argue the child’s animosity toward the searching parent is evidence of the defendant’s cruelty to the child. This anger and alienation is the product of removal and isolation from the searching parent accompanied by lies told to the child by the defendant. Expert testimony should also be offered at sentencing to show the potentially permanent harm the defendant’s conduct has caused the searching parent, and also the harm inflicted on the child.
In cases where there is either a total refusal by the child to see the searching parent or the reunification process is going poorly, expert testimony may be elicited to explain why, under the facts of the case, this is to be expected. In cases where there is a prolonged abduction accompanied by parental alienation programming ("your mom is dead" or "your father doesn’t love you any more"), the child’s entire psyche is tied up in believing that the abducting parent was telling the truth. If the abductor is shown to be a liar, the child’s entire world is destabilized. From the child’s perspective, life seems to be one huge lie perpetrated by the abductor. To avoid this trauma, children may engage in denial and other avoidance strategies to save their sense of self.
It is important that the defendant not be allowed to profit from the damage that has been done to the child’s ability to bond with the searching parent. Expert testimony on coping mechanisms and trauma will assist the prosecutor in helping the jury see reunification difficulties for what they are: evidence of the harm done to the child by the abductor, and not any reflection on the validity of the necessity defense. The judge should be made aware of the psychological ramifications of the abduction as part of a victim impact statement offered before sentencing. Expert testimony can show that both the parent and the child were seriously, and perhaps permanently, harmed by the act.
Conclusion
Parental kidnapping is a criminal offense, just like other kidnappings. The abductor uses the taking of the child as a weapon to control or punish the other parent. Any claim of "necessity" should be assessed against the high standard demanded of that defense: no reasonable, legal alternative. Dynamics of victimization, such as the child not wanting to see the searching parent, must be examined and appraised in light of appropriate psychological evaluations of this conduct. The alienation of a child from the searching parent should be used as an aggravating factor at sentencing.
Parental kidnapping is not a private matter or simply a civil case. It is criminal conduct and must be prosecuted as vigorously as all other forms of child abuse.
1 The Washington Post, April 22, 1998, Section A, page 1 and April 21, 1998, Section A, page 2.
2 Finkelhor et al., State Department, National Incidence Studies on Missing, Abducted, Runaway and Thrownaway Children in America (1990).
3 See Criminal Parental Kidnapping Statutes, APRI (1998) for a listing of each state’s statute.
4 Geoffrey Grief & Rebecca Hegar, When Parents Kidnap: The Families Behind the Headlines (1993).
5 Grief & Hegar, supra. Dorothy Huntington, Parental Kidnapping: A New Form of Child Abuse, in American Prosecutors Research Institute, Investigation and Prosecution of Parental Abduction app. (1995).
6 Geraldine Van Buren, The British Institute of Human Rights, The Best Interests of the Child, at 20 (1993).
7 United States v. Bailey, 444 U.S. 394 (1980), cited in Investigation and Prosecution of Parental Kidnapping, supra.
8 See Cal. Penal Code §278.7(c); N.J. Stat. Ann. § 2C:13-4.c.(1) (West 1995)
9 See N.H. Rev. Stat. Ann. § 633:4.IV (1996).
10 Anne T. Kangas, L.C.S.W., Child Abduction and Reunification (1998)(on file with the author).
11 Id.
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