James W. Cushing, Faye Riva Cohen James W. Cushing, Faye Riva Cohen

The Pennsylvania Supreme Court has recently handed down a ruling in the matter of Pennsylvania v. Tex Xavier Ortiz, 45 WAP 2017, that addresses and clarifies whether the criminal offense of interference with the custody of children, committed by a biological parent, can serve as an underlying felony for the crime of kidnapping a minor.

In a related custody matter to Ortiz, the maternal grandmother of the father’s (Ortiz) daughter, was awarded primary custody of his daughter as Ortiz failed to appear at the custody hearing. Per the order granting her primary custody, the grandmother attempted to exercise her custodial rights over the daughter, but could not locate her. After an investigation, it was found that Ortiz had his daughter and made efforts to conceal his whereabouts. The daughter was eventually found and returned to the grandmother, and Ortiz was arrested.

Ortiz was charged and convicted of interference with the custody of children (ICC) (pursuant to 18 Pa.C.S. Section 2904(a) and (c)) as well as kidnapping a minor (pursuant to 18 Pa.C.S. Section 2901(a.1)(2)). Ortiz appealed and argued that the ICC cannot serve as an underlying felony for the kidnapping of a minor when committed by a biological parent. Pennsylvania Superior Court agreed with him, and the commonwealth was granted an allowance of appeal to the Pennsylvania Supreme Court.

The court first observed that the kidnapping-of-a-minor statute has two required elements: the unlawful removal of a child a substantial distance away without the consent of the person responsible for the supervision of the child, and one of the four enumerated states of intent as described in Section 2901(a.1)(1) – (4) (i.e: (1) to hold for ransom or reward, or as a shield or hostage; to facilitate commission of any felony or flight thereafter; to inflict bodily injury on or to terrorize the victim or another; and, to interfere with the performance by public officials of any governmental or political function.). Next, the court discussed the ICC, which prohibits “the taking of a minor ‘from the custody of its parent, guardian or other lawful custodian, when the actor has no privilege to do so.’” The two statutes clearly closely track one another and significantly overlap.

The court then turned its focus on Section 2901(a.1)(2) where kidnapping of a minor requires an intention to commit a felony or flee with the child and looked at how that related to the ICC. The court observed that applying the ICC to Section 2901(a.1)(2) resulted in unworkable circular logic. Specifically, the court opined that “it is logically problematic to assert that father unlawfully removed the child pursuant to the kidnapping statute with the intent to make it easier to unlawfully remove the child as contemplated by the ICC statute … stated otherwise, the act of taking does not, sensibly, facilitate the act of taking.”

To discern a proper understanding of how to interpret these statutes together, the court looked to the Model Penal Code, from which both statutes at issue herein are derived. Pursuant the commentary to the Model Penal Code, kidnapping protects against physical danger, while the ICC serves only to maintain parental custody of children against unlawful interference, which does not necessarily touch upon any of the four statutory states of intent in the kidnapping statute listed above. Furthermore, someone who commits kidnapping typically has malevolent intent toward the child, while, by contrast, violating the ICC, although unlawful, is committed by someone who typically is favorably disposed to the child. The ICC, therefore, operates as a lesser included offense to kidnapping to allow for punishment of the act of unlawfully taking a child contrary to a custody order, which is less severe than standard kidnapping in that it does not meet the states of intent mentioned above.

Based on the above, the court ruled that a conviction under the ICC cannot form the underlying felony for a kidnapping charge under Section 2901(a.1)(2). The court found that the authors of the Model Penal Code “having assiduously explained that kidnapping requires more than interference with the custody of a child by a parent—did not intend for such interference to be reintroduced into the calculus under the rubric of a predicate felony.”

Finally, the court rejected the commonwealth’s argument that a defendant may be prosecuted under all available provisions under 42 Pa.C.S. Section 9303 because the kidnapping statute and the ICC do not cover the same underlying conduct.

In sum, a finding that a biological parent committed the crime of interfering with a custody order under 18 Pa.C.S. Section 2904(a) and (c) cannot also serve as an underlying felony for a charge and conviction for kidnapping a minor.

James W. Cushing is an associate at the law office of Faye Riva Cohen, research attorney for Legal Research Inc. and sits on the board of directors of the Christian Legal Clinics of Philadelphia.