Parental kidnapping, criminal contempt of court, and the double jeopardy clause: a recommendation for state courts.

AuthorBrummel, Valerie

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Judicial Oversight in Child Custody Cases: History and Modern Application B. The Problem of Parental Kidnapping II. CURRENT METHODS OF COMBATING PARENTAL KIDNAPPING A. Federal Legislation--the UCCJA and the PKPA B. State Legislation--the Crime of Parental Kidnapping or Custodial Interference C. Judicial Enforcement of Custody Orders D. Civil Liability for Parental Kidnapping Under Tort Law E. Court-Sponsored Custody Mediation III. THE PROBLEM OF THE DOUBLE JEOPARDY RULE A. History of the Double Jeopardy Rule B. The Double Jeopardy of Criminal Contempt of Court and Parental Kidnapping IV. THE DOUBLE JEOPARDY RULE SHOULD NOT PROTECT CRIMINAL CONTEMNORS FROM CRIMINAL PROSECUTION FOR PARENTAL KIDNAPPING A. Criminal Contempt of Court does not Contain the Same Elements as Parental Kidnapping B. Criminal Contempt of Court Differs Significantly from the Crime of Parental Kidnapping C. Criminal Contempt of Court does not Consistently Punish Parental Kidnapping D. Criminal Contempt of Court does not Adequately Punish Parental Kidnapping CONCLUSION INTRODUCTION

In the event of a divorce, parents become subject to court-issued child custody orders, which dictate how much time they can spend with their children and where the children will live. (1) When a parent decides to disobey the child custody order and deprive the other parent of her legal right to custody, he has committed parental kidnapping. (2) In 2010, the United States Department of Justice estimated that more than 200,000 children are victims of parental kidnapping each year. (3) In 2014, reported that domestic parental child abduction figures are expected to increase by 20% annually in the coming years. (4)

In 1980, Congress passed the Parental Kidnapping Prevention Act (PKPA) to fight parental kidnapping. (5) Subsequently, all fifty states adopted the Uniform Child Custody and Jurisdiction Act (UCCJA) and imposed criminal liability for parental kidnapping; some even went so far as to label parental kidnapping a felony. (6) However, some state courts have applied the double jeopardy rule to protect parental kidnappers, undermining efforts by Congress and state legislatures to punish and deter parental kidnapping. (7) These courts claim that a double jeopardy problem arises where a violating parent is guilty of both the crime of parental kidnapping and criminal contempt of court. (8) In addition to breaking state criminal laws, a parent who retains or removes his child in violation of a child custody order has also disobeyed the court that issued the order; thus, the court can hold the parent in contempt for his disrespectful conduct. (9) Accordingly, some courts have held that the double jeopardy rule bars the subsequent prosecution of a criminal contemnor under state criminal statutes. (10)

Carlson v. Carlson (11) demonstrates the potential disparity between sanctions for criminal contempt and the sentencing guidelines of the applicable state parental kidnapping statute. (12) In Carlson, the judge held a parent in criminal contempt for violation of a child custody order and decided that the sanction would be incarceration for five hours, "until 5:00 p.m. that day." (13) However, under Georgia's state criminal statute outlawing parental kidnapping, the parent could have either been fined between $200 and $500, or been imprisoned for between one and five months, or both. (14) Another parent in Georgia who effectively commits the same crime at issue in Carlson could face a much harsher punishment: if the state prosecuted him or her under Georgia's criminal statute, that parent could face at least a $200 fine or a month of imprisonment. (15)

As Carlson demonstrates, applying the double jeopardy rule to protect parents guilty of criminal contempt can lead to disparate results. This Comment outlines four reasons why the double jeopardy rule should not apply to criminal contemnors. First, under the Blockburger "same elements" test, the crimes of contempt and parental kidnapping contain distinct elements: contempt requires the existence and violation of a court order while parental kidnapping does not necessarily include such an element, and parental kidnapping requires intent to detain or conceal the child while criminal contempt includes no such element of intent. (16) Second, the crime of criminal contempt and the crime of parental kidnapping contain significant differences such as purpose and the role of the jury in the criminal proceedings. (17) These differences demonstrate that the legislature may not have intended for criminal contempt and parental kidnapping to be considered the same offense for double jeopardy purposes, and state courts must implement legislative intent in their double jeopardy analyses. (18) Third, ensuring that the state may prosecute parental kidnappers under its criminal statutes results in more consistent sentencing. (19) Finally, considering the significant harms that parental kidnapping inflicts on both the custodial parent and the child, a finding of criminal contempt alone does not adequately punish parental kidnappers. (20) Therefore, courts should hold that the double jeopardy rule does not protect a parental kidnapper from punishment under both criminal contempt of court and state criminal statutes.

First, Part I of this Comment discusses the history of judicial oversight in child custody cases and introducing the problem of parental kidnapping. Next, Part II identifies five methods by which the legal system combats parental kidnapping: federal legislation, state criminal statutes, judicial enforcement of child custody orders, tort law, and court-sponsored mediation. Next, Part III outlines the history of the double jeopardy rule and explains how different courts have applied it to criminal contempt of court and parental kidnapping. Finally, Part IV explains the four aforementioned reasons why courts should hold parental kidnappers responsible under state criminal laws, regardless of any prior criminal contempt sanctions.


    The history of judicial oversight in American child custody cases begins in the early twentieth century. Over time, child custody jurisprudence evolved from the traditional paternal preference to the "best interests of the child" standard used by courts today. (21) In light of the court's decision-making role in child custody disputes, there are various motivations for parental kidnapping, as well as different factors that contributed to the rise of parental kidnapping.


      In the United States, natural parents have a "fundamental liberty interest ... in the care, custody, and management of their child." (22) As Justice Blackmun wrote in Santosky v. Kramer, "Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." (23)

      There are four classes of proceedings in United States law that affect the custody of a child: (1) divorce and dissolution of a marriage, (2) guardianship law, (3) juvenile court and neglect laws, and (4) laws relating to the termination of parental authority for adoption. (24) This Comment addresses the first class of proceedings, after the divorce and dissolution of a marriage.

      Prior to a divorce, parenting activity is not subject to detailed regulation by the state. (25) However, after a divorce, the court system has the authority to regulate parents through child custody and visitation orders. (26) These judicial orders dictate which parent is the primary guardian, how much time each parent can spend with the child, and where the children will live. (27) In the eyes of the law, child custody orders serve the important purpose of protecting the established relationships between children and both of their parents, in light of the changed family circumstances that result from divorce. (28)

      Under traditional English common law-which serves as the foundation of American law in this area-fathers had patria potestas, or parental power, over their children, whom the fathers viewed as chattel or servants. (29) However, in the early twentieth century, both British and American courts shifted their custody supposition: under the new "Tender Years doctrine," courts presumed that mothers should have custody of their young children, unless the father could show that the mother was "unfit." (30) The tender years doctrine suggested that mothers are "softer and more natural nurturers" than fathers, as well as "biologically better designed" for childrearing. (31)

      In 1970, American child custody law evolved to a "neutral best interests of the child" standard in deciding custody, as recommended by the Uniform Marriage and Divorce Act (UMDA). (32) Most states passed statutes listing factors that a judge should consider when determining the child's best interests. (33) The UMDA also set forth a general presumption of visitation rights for the other parent. (34) Accordingly, most states passed laws protecting the access rights of the noncustodial parent; (35) generally, a court would only deny visitation rights if the judge believed that contact with the other parent would endanger the child. (36) Finally, in the 1980s, courts began to encourage joint legal custody or shared parenting, rather than naming one parent as primary custodian, as long as it was in the best interests of the child. (37) This policy remains in effect today. (38)


      Because state courts have the power to issue child custody orders, divorced parent may not be able to go wherever they want, whenever they want, with their child. As a result, some divorced parents may decide to violate the child custody order, and in some situations their decisions amount to child kidnapping. (39) In the typical parental kidnapping case, the noncustodial parent, often...

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