Custody of Nonbiological Children—Burden and Proof Issues

In the matter of R.L. v. M.A., Case No.: 2740 EDA 2018, the Pennsylvania Superior Court delved into the leading edge of family law when it ruled upon whether an individual in a same-sex relationship can be awarded custody of a child with whom she has no biological relationship.

In R.L., the appellant, M.A., entered into a romantic relationship with R.L. (appellee) in 2012. During the relationship, the parties decided to impregnate the appellant via artificial insemination using sperm from the appellee’s brother.

The couple proceeded to prepare for the birth of the child by setting up the baby’s room and purchasing typical baby supplies. R.L. was present for the baby’s birth, chose the baby’s first name, and gave the baby her own surname. Not long after the child was born, the couple broke up.

Instead of litigating, the parties entered into an informal agreement for the custody of the child. The child lived primarily with the appellant and spent every other weekend with the appellee. This arrangement lasted until 2014 when the parties informally elected to equally share custody of the child. This 50/50 arrangement lasted nearly four years until R.L. called the daycare center where the appellant worked and which the child attended. R.L. complained that the appellant was having too much contact with the child while in daycare and even inappropriately (in her opinion) removed the child from the daycare premises.

In response to the above-mentioned telephone call, the appellant unilaterally discontinued their customary 50/50 arrangement, which led to R.L. filing a complaint for custody of the child. R.L. was granted in loco parentis over the child fairly quickly, which conferred R.L. standing to have custody of the child. The matter went to trial and the trial court entered an order granting each party equal custody, alternating on a weekly basis; the appellant appealed this order to Superior Court.

On appeal, the appellant argued that the appellee did not meet the burden of clear and convincing evidence that a nonparent should have custody equal to a parent, and that the court erred in weighing the evidence presented.

In support of her argument that appellee did not meet her burden of proof, the appellant argued that 23 Pa.C.S. Section 5327 requires a trial court to apply a presumption in favor of parents over nonparents, and, as a “nonparent,” the appellant did not meet her burden to overcome the presumption in favor of the appellee. The appellant also argued that the trial court erred in considering the parties’ informal shared custody arrangement when rending its decision.

In making its ruling, the Superior Court acknowledged that “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” In saying that, the Superior Court also recognized that this principle does “not preclude an award of custody to the nonparent.”

Additionally, the court made it clear that the “best interests” standard is still the touchstone when entering a child custody order. Furthermore, once someone is granted in loco parentis, she need not demonstrate that the other party is unfit, but rather merely demonstrate that it is in the best interests of the child (as proven by clear and convincing evidence) to be with the nonparent party.

The Superior Court ruled that the appellant did meet her burden of clear and convincing evidence, specifically by demonstrating that the parties lived out an agreed shared custody arrangement for a number of years, indeed most of the child’s life, and only discontinued that arrangement due to the appellee being upset over the appellant’s telephone call to the daycare center, as opposed to anything directly related to custody.

The Superior Court also indicated that the appellant’s interpretation of the law is incorrect. Namely, while the scales do tip heavily toward a parent over a nonparent, there is a distinction as to whether that nonparent is seeking shared, as opposed to primary, custody. As she was only seeking shared custody, the appellant only had the burden of clear and convincing evidence to bring the scales even with the appellee. Only if the appellant were seeking primary custody would she have to tip the scales hard toward herself under the burden of clear and convincing evidence.

Ultimately, a nonparent seeking shared custody of a child has to have standing and demonstrate by clear and convincing evidence that such a custody arrangement is in the best interest of a child.

This article was originally published in The Legal Intelligencer on June 27, 2019 and can be found here.

Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

This is from religionclause.blogspot.com which you can find here:

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple’s preschool are not covered by the ministerial exception rule.  In the case, California’s Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state’s Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple’s ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held “ministerial” positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs….

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

You can learn more about this issue here.

City Settles Firefighter’s Religious Discrimination Suit

This is from religionclause.blogspot.com which you can find here:

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department’s grooming policy. A press release from First Liberty announced the settlement. First Liberty’s website has more on the case.

You can learn more about this issue here.

Christian School May Use Oregon’s Religious Exemption To Reject Jewish Faculty Applicant

This is from religionclause.blogspot.com which you can find here:

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college’s refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon’s non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide … religious institution, including … a school… to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the … institution; … [and]  (c) The employment involved is closely connected with or related to the primary purposes of the … institution….

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school’s religious purpose.

You can learn more about this issue here.

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court’s ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted “to killing babies than to helping women.” Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

You can learn more about this issue here.

Suite Challenges School’s Restrictions On Bible Distribution

This is from religionclause.blogspot.com which you can find here:

Suit was filed this week in a Pennsylvania federal district court challenging regulations and policies of the Mechanicsburg Area School District that limit student members of a school’s Bible Club from distributing Bibles to classmates during lunch time hours. School policy allows non-school materials to be distributed only on public sidewalks outside the building and only for 30 minutes before and 30 minutes after school, except as otherwise permitted by the principal.  The complaint (full text) in Christians In Action Club v. Mechanicsburg Area School District, (MD PA, filed 1/30/2019) challenges these as “overbroad and unconstitutional time and place restrictions that impose a complete ban on literature distribution during the school day.” The suit alleges that these restrictions violate students’ free speech and free exercise rights both on their face and as applied. Cumberland Sentinel reports on the lawsuit.

You can learn more about this issue here.

Capitalists Against the Free Market

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

If you listen to the apologists of capitalism, there is one thing they consistently argue for when they rail against things like socialism or even distributism; the Free Market. They say that they believe that the Market should determine what products and services succeed and fail without artificial support or suppression from the government. Customers should be free to decide what products and services they want to buy and it is up to the producers and service providers to convince consumers to choose theirs instead of others. It is interesting to note those cases where they not only fail to support this idea, but actively work against it.

In order for consumers to be able to make a decision that truly represents the action of a free market, the consumer must have the right to know certain things about the products and service providers between which they are choosing. For example, it has generally been recognized that consumers have the right to know the ingredients of food. This is not just for reasons of health, but for other reasons as well. Vegetarians and vegans have the right as consumers to know whether or not the food they are purchasing contains meat or other animal products. This allows them to make a truly free market choice. Consumers also have the right to know who makes a product because, if they think the producer is unscrupulous, they need to have the ability to choose a competitor’s product. If they are prevented from doing this by allowing the producer to be hidden, then the consumer is prevented from making a free market decision they actively want to make.

An important aspect of this consumer choice is that the consumer’s reason does not have to be deemed “reasonable” by others. If you choose not to buy from a particular provider because they support things which you oppose on moral grounds, it doesn’t matter if those things you oppose have nothing to do with the product in question. In a truly free market, you would have the right to refuse to do business with any provider for whatever reason you want. In a truly free market, the consumer would have the right to know what he needs to know to make a truly free decision, and providers should therefore be required to provide this information and prevented from taking steps to hide it. It is the burden of providers to convince consumers to purchase their products and to do so in an open and honest way. If they fail to convince, then their failure is a result of the “invisible hand” of the free market.

In my state, Washington, there was a movement to require the labeling of products containing GMO ingredients. There are various reasons why people are making their free economic choice to not purchase products with patented genetically modified organisms, and these people were asking that their right to make that free market decision be honored by requiring that products containing these ingredients be labeled so that consumers would know what they are buying. What is truly interesting in regard to this article are the arguments I heard made by avowed capitalists against this. The capitalist pundits almost uniformly opposed the legislation on various grounds. The two main arguments made by these capitalists involved the impact to prices and the irrationality of those who opposed GMO products.

They claimed that the cost of changing the labeling would be prohibitively high and the cost of food would skyrocket as a result. There are two points which easily disprove this claim. First, companies change their labels quite frequently when it serves their purpose. They change pictures and rearrange things, they add special sections about offers. If these label changes don’t cause prices to skyrocket, then requiring the labels for future packages to indicate the presence of GMO ingredients won’t either. Second, the requirement has been made in several other countries and their prices didn’t skyrocket. Those who pointed this out were often treated with disdain by these capitalists.

The argument that those who oppose GMO products were doing so irrationally was typically in the form of saying they didn’t understand the science behind the GMO process. However, that isn’t a valid reason to oppose consumer information because the burden is on the producer to convince them to want to buy their products. If a group of consumers decides they would never purchase those products, that is still a free market decision even if the reasons for their choice are incorrect. We should expect avowed capitalists to support the right of consumers to make that decision even if they disagree with the decision itself.

While supporters of the legislation did voice their reasons for not wanting to choose GMO products, their argument about the legislation itself was essentially that they wanted the right to make their free market decision, and they couldn’t effectively do so if these ingredients were allowed to be hidden from them in the marketplace.

Since we know that the labeling requirement would not actually cause prices to skyrocket, what then is the real reason to refuse to indicate that a product contains GMO ingredients? An obvious answer is the loss of sales. In a free market with informed consumers, some of them will freely choose, for whatever reason, not to purchase products that contain GMO ingredients. In terms of free market capitalist economics, that is not only they way things work, but the way they should work. For a producer to refuse or oppose labeling that would inform the consumer about these ingredients is nothing less than deliberately working against free market values; hiding information you know the consumers want in order to effectively trick them into purchasing a product you know they don’t want. This is duplicitous at best.

Why then did so many capitalist who claim to advocate the free market vociferously oppose consumers being allowed to make informed free market decisions? They didn’t even seem to realize that they were opposing a position that essentially said, “let the free market decide the fate of GMO products in the marketplace.” In essence, they were opposing the free market itself.

An Economics of Justice & Charity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

The Church has always concerned itself with issues of justice in society, and popes have taught extensively on the topic since the late 1800s. Unfortunately, many Catholics in our day are not aware of this teaching, or only consider it in regard to things like helping the poor. Helping the poor is a very important aspect of it, but the scope of the Church’s teaching on matters of social justice go much further. Any aspect of social life which involves questions of ethics or morality fall within the scope of this teaching. Thomas Storck’snew book, An Economics of Justice & Charity, is a guide that shows how the Church’s teaching is very clear, has never changed, and definitely applies to areas of social life like economics.

In this new book published by Angelico Press, readers of Practical Distributism and The Distributist Review will encounter some ground already covered by Mr. Storck. However, he has expanded this coverage and included more material for consideration. Especially important for the Catholic reader, and others who wish to understand the Church’s teaching on social justice, are the sections covering claims, sometimes made by Catholics, that the Church’s teaching has somehow changed since the Second Vatican Council, particularly with the encyclical of St. John Paul II, Centesimus Annus. Quoting those who claim that the Church’s teaching has changed, or that the Church has now wholeheartedly endorsed capitalism, Mr. Storck handily refutes those claims.

Another topic of interest to our readers is that of usury. On this topic, Mr. Storck clearly shows that, while the Church’s position on certain financial considerations may seem to indicate a change of teaching, the Church still condemns usury today as she always has. Through his examination of these financial considerations, Mr. Storck shows that the Church always sides with justice and maintains her teaching clear and unchanged without presenting an impossible burden for those of us who live in a world with a financial system that stands opposed to her teaching. However, he also points out that there are different financial options available to us. If we sincerely believe our Faith and strive to live by the teachings Christ has passed down to us through His Church, we need to choose options which are most consistent with those teachings whenever possible.

I wholeheartedly recommend An Economics of Justice & Charity. Consider this book for your own library and for those with whom you would like to share this important aspect of the Church’s teaching. Changing society is a slow and gradual process that must begin with getting people to consider alternatives to the status quo. This book can be a valuable tool in that most important work. Consider heading over to the Angelico Press web site to order a copy.

Interference With Child Custody or Kidnapping? High Court Sorts It Out.

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.

Originally published in The Legal Intelligencer on December 20, 2018 and can be found here and by The Pennsylvania Family Lawyer and found here.