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When a noncustodial parent illegally absconds with his or her own child, the conduct is generally not enough to meet the definition of “kidnapping” under Pennsylvania’s crime code, the state’s Superior Court has ruled. Writing for the three-judge panel in Commonwealth v. Barfield, Superior Court Judge Joan Orie Melvin said the statute, 18 Pa.C.S.A. Section 2901(a)(4), is meant to punish someone who was engaged in political terrorism, not a parent with questionable judgment. “The conduct is further distinguishable from kidnapping by the fact the defendant is usually a parent or other relative who is favorably disposed toward the child and does not think of his action as harmful to the child,” Orie Melvin wrote. “Thus, a less severe sanction for this type of conduct is warranted. Clearly the drafters of our present Crimes Code intended to differentiate between the varying types of unlawful removal and restraint based upon the degree of harm potentially involved with such actions.” The case was one of first impression in the court. Superior Court Judge Joseph Del Sole and Senior Judge Frank Montemuro were also on the panel. CUSTODY OF TWO CHILDREN AT ISSUE According to the opinion, the Lancaster County Common Pleas Court put Antonia Barfield’s two children in the custody of that county’s Children and Youth Agency in May 1996. After the court later adjudicated the children dependent, they were placed in foster care, and a plan was created for Barfield to follow if she were to regain custody. The court decided Barfield could have unsupervised weekend visits with her children. One such visit was scheduled for June 11 to June 13, 1999, but Barfield failed to return the children. Barfield left a message at CYS on June 14 explaining the children had been taken into the custody of the Provident Embassy World Religions and that the agency would receive an order overruling its order. Barfield said she would return to Lancaster once that happened. The Lancaster City Police issued a warrant for Barfield’s arrest. She was taken into custody in Philadelphia on Sept. 17, 1999, but the opinion said the children’s whereabouts are still unknown. The Lancaster, Pa., district attorney charged Barfield with two counts of kidnapping and two counts of interference with the custody of children. A jury found Barfield guilty of all counts, but the court later acquitted Barfield on the kidnapping charges, finding the criminal statute was not meant to address the conduct in which Barfield engaged. The commonwealth appealed. INTERFERENCE WITH PUBLIC OFFICIALS Orie Melvin explained that in order for Barfield to be convicted of kidnapping, the commonwealth would have to prove she removed her children unlawfully with the intent of interfering with public officials’ performance of a governmental function. The trial court interpreted subsection (4) to concern political terrorism and said conduct having to do with parental custody is dictated by another statute, 18 Pa.C.S.A. Section 2904. Under Section 2904, interference with a child’s custody can either be a second-degree misdemeanor or a second- or third-degree felony. The commonwealth argued that agency caseworkers are public officers under the definition of subsection (4) because “they act pursuant to a court-ordered placement plan in accordance with state mandated duties under the Juvenile Act and the Child Protective Services Law,” Orie Melvin said. As an alternative argument, the commonwealth argued that Barfield’s conduct interfered with a judge’s orders, who is also a public official performing a governmental function. Orie Melvin said the court was not persuaded by either argument. “If we were to accept the commonwealth’s position then the crime of interference with the custody of children would become superfluous,” Orie Melvin wrote. “Clearly, the object to be attained by the Legislature was just the opposite.” However, the court did not entirely rule out the possibility of using subsection (4) against a parent who abducts a child. Orie Melvin just said the circumstances of Barfield’s case did not rise to that level. In addition, Orie Melvin said the comment to the Model Penal Code’s provision that corresponds with Section 2901 distinguishes political terrorism from parents who kidnap their children. Orie Melvin said the state Legislature followed the code when it promulgated Section 2904.

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