Visitation Schedules And Interference With Custody: A Look At How Criminal Courts Interpret Custody Orders

When you hear the term “custody battle” what do you think of?  I would say most people think of parents in a no holds barred cage match where anything goes.  There is name calling, false accusations, and a whole lot of hurt feelings in a custody battle.  Eventually though, after the custody trial/cage match, the court makes the determination with regards to custody and visitation.

Now to be fair, there are plenty of couples and married couples that go their separate ways and work together to formulate a custody and visitation plan surrounding their children.  These individuals usually present their formulated custody and visitation plan as an agreed order to the court.  A majority of these plans end up as Shared Parenting Plans.

Regardless if the court issues an order after a custody trial or if the parents present an agreed entry to the court, the parents must abide by the court’s order regarding custody and visitation.

Unfortunately, some parents choose to ignore the court order surrounding custody and visitation of the minor children.  Not only can this lead to civil prosecution (i.e. contempt of court) it can also lead to criminal prosecution!

Like most criminal cases, Interference with Custody cases are fact sensitive and can have very different outcomes based on visitation agreements.  To help us on this fantastic journey of criminal law, we will take a look at two cases of individuals being accused of Interference with Custody but will two very different outcomes.  Before we begin this magical journey let’s take a gander at Ohio Revised Code 2919.23 Interference with Custody.

R.C. 2919.23 (A)(1) provides the following:

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 child.

R.C. 2919.23 seems simple enough and pretty straight forward right?  Let’s take a look at our first case of State v. Sprinkle, 2007-Ohio-4367, where the defendant tried to skirt around the Interference with Custody statute.

In Sprinkle, Sprinkle and her ex-husband entered into a shared parenting plan that named both parents as residential parents of their child and incorporated a visitation plan.  Pursuant to the shared parenting plan, Sprinkle was to have visitation with her child every other weekend and on alternate weeks, Monday through Friday.  In addition, Sprinkle was allotted two continuous weeks during the summer, but only upon 30 days written notice to her ex-husband.  Lastly, either parent could modify the agreement upon the other’s consent.

Prior to Sprinkle executing her weekend visitation with her child, Sprinkle requested to her ex-husband if he would have any issue of taking the child to Kentucky and bringing the child back on Monday instead of Sunday when her visitation would end.  Sprinkle’s ex-husband had no issue and Sprinkle, along with the child, went down to Kentucky for a long weekend.

Well, Monday came and went without Sprinkle returning the child back to her ex-husband.  Not too happy with this, Sprinkle’s ex-husband contacted Sprinkle several times while she was in Kentucky and notified the police department.  The police department eventually was able to get ahold of Sprinkle and notified her that she was in violation of the agreement.  Sprinkle and the child returned after being in Kentucky for 10 days.  Sprinkle was arrested and subsequently indicted on one count of Interfering with Custody, a felony of the fifth degree.

Sprinkle took her case to the box (jury trial) and was found guilty as charged!  Sprinkle was sentenced to 90 days in the local county hotel (jail) and three years of probation.  Sprinkle filed a timely appeal.

On appeal, Sprinkle argued that the statute in question does not apply in the context of a shared parenting plan because she is the custodial parent of the child so long as the child is with her.  Thus, even though she allegedly kept the child in violation of the agreement, she had custody and could not have violated the criminal statute.

The appellate court said, in their Coach Lee Corso voice, “NOT so fast my friend!”

A parent with visitation rights under a court order can be charged with violating R.C. 2919.23 if the parent keeps their child without privilege to do so.  State v. Brickles, 1999 WL 957643 (Sept. 3, 1999).  In Brickles, the appellate court found that parents’ natural privileges regarding custody are limited by a court order including specific times listed for visitation.

Applying Brickles, the appellate court found based on the testimony given at trial that 1) Sprinkle’s did not have the right to keep her daughter for ten days, 2) Sprinkle’s ex-husband was the residential parent during the time Sprinkle’s was in Kentucky with the child, and by her own admission 3) Sprinkle knew that she was keeping the child, without privilege to do so, in violation of R.C.2919.23.

With that, the appellate court affirmed the judgment and ole Sprinkle got to cool off in the county spa.

Now in State v. D.F., 2017-Ohio-534, the facts led to a different outcome.

In D.F., D.F. was convicted of a single count of interference with custody in violation of R.C. 2919.23 after a brief trial.  During the trial, the father (who was also the custodial parent of the minor child) testified that he and D.F. often deviated from the parenting schedule, including the incident that led to charges being brought against D.F.  Although the father testified that he did not give D.F. permission to keep the child for the period in question, the state presented no evidence to prove that the parties actually discussed the child’s return date.

In addition, the father testified that he attempted to call and text message D.F. to inquire about the child’s return, he only did this for one day with no evidence that D.F. received the calls and text messages.

Applying Sprinkle and Brickles, the appellate court found based on the testimony given at trial that 1) there was no evidence given of any specific understanding as to when the child would be returned and 2) given the fact that the parties routinely deviated from the parenting schedule, the father’s testimony regarding his subjective understanding of the matter did not prove what D.F. knew or should have understood.

Based on the above, the appellate court found that the state offered insufficient evidence to prove beyond a reasonable doubt that D.F. knowingly or recklessly kept their child without privilege to do so.

Great outcome for D.F., but a real bummer for Sprinkle!

My take on these cases is to keep it simple and to follow the visitation order!  Don’t be like Sprinkle whose only justification for keeping the child for 10 days in violation of the visitation order was that she was the child’s mother.  In other words, “you are not going to tell me what I can and can’t do with my child.”

You might get away with that in divorce or juvenile court, but not so much in criminal court.  These cases make it clear that a criminal court is going to follow the visitation agreement as it is written!

And if you and your ex-significant-other like to deviate from the agreed upon visitation order, I highly recommend you talk with a family law attorney to structure such an agreement to ensure your visitation rights are protected!

http://www.daytonduilaw.com

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