MCL 750.350a(1) defines parental kidnapping as:
“[a]n adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or parenting time rights under a lawful court order at the time of the taking or retention,[1] or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.”2
A person convicted under the parental kidnapping statute is subject to imprisonment for not more than one year and one day, and/or a maximum fine of $2,000.00. MCL 750.350a(2). The court may also order the convicted parent to “make restitution to the other parent, legal guardian, the person or persons who have adopted the child, or any other person having lawful charge of the child for any financial expense incurred as a result of attempting to locate and having the child returned.” MCL 750.350a(3).
First-time offenders who are in violation of MCL 750.350a(1) may be eligible for deferred proceedings under MCL 750.350a(4). See Section 2.5(B) for a detailed discussion of deferred proceedings.
Retention of a child in another state that is contrary to a Michigan court’s order and in violation of the parental kidnapping statute under MCL 750.350a(1), is subject to the jurisdiction of Michigan courts. People v Harvey, 174 Mich App 58, 61-62 (1989). In id. at 61, the Court of Appeals found:
“In this case, [the] defendant[-father] had a legal duty to return his daughter to her mother. His failure to perform this duty, which was made criminal by the enactment of MCL 750.350a, should be considered a crime committed within the State of Michigan. Acts done outside a state which are intended to produce, and in fact do produce, detrimental effects within the state may properly be subject to the criminal jurisdiction of the courts of that state. The detrimental effects of [the] defendant[-father’s] intentional retention of the girl in violation of the Michigan court’s custody order occurred here, in Michigan, since it was the authority of a Michigan court that was thwarted and it was the custodial right of a Michigan resident that was infringed upon.”
A.Defenses to Parental Kidnapping
MCL 750.350a(7) provides an affirmative defense to parents who prove that they acted to “protect[] the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.”
A provision within the Child Custody Act, MCL 722.27a(7)(h) provides that, for purposes of determining parenting time, “[a] custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent.”
B.Deferred Sentencing in Parental Kidnapping Cases
Offenders with no prior kidnapping convictions may be eligible for deferred proceedings under MCL 750.350a(4). MCL 750.350a(4) allows the court to place the offender on probation after a finding of guilt, without entering judgment:
“When a parent who has not been convicted previously of a violation of [MCL 750.349], [MCL 750.350], or [MCL 750.350a], or under any statute of the United States or of any state related to kidnapping, pleads guilty to, or is found guilty of, a violation of this section, the court, without entering a judgment of guilt and with the consent of the accused parent, may defer further proceedings and place the accused parent on probation with lawful terms and conditions.” MCL 750.350a(4).
Until October 1, 2021 an individual who pleads guilty to a criminal offense not listed in MCL 762.11(3) or MCL 762.11(4), committed on or after the individual’s seventeenth birthday but before his or her twenty-fourth birthday, may be permitted to participate in deferred proceedings if he or she meets certain eligibility requirements as set out under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.3 MCL 762.11(1). “If the offense was committed on or after the individual’s twenty-first birthday but before his or her twenty-fourth birthday, the individual must not be assigned to youthful trainee status without the consent of the prosecuting attorney.” Id.
“Beginning October 1, 2021 an individual who pleads guilty to a criminal offense not listed in MCL 762.11(3) or MCL 762.11(4), committed on or after the individual’s eighteenth birthday but before his or her twenty-sixth birthday, may qualify for deferred proceedings as a youthful trainee if he or she meets certain eligibility requirements under the HYTA. MCL 762.11(2). If the individual committed the offense on or after his or her twenty-first birthday but before his or her twenty-sixth birthday, the prosecuting attorney must consent to the individual’s assignment to the status of youthful trainee. Id.
Deferred proceedings are also available for offenders who have been admitted into certain problem solving courts:4
•Veterans charged with a domestic violence offense if he or she meets certain eligibility requirements for admission into veterans treatment court under MCL 600.1200 et seq.5
•Individuals charged with a domestic violence offense if he or she meets certain eligibility requirements for admission into mental health court under MCL 600.1090 et seq.,6 and only if “[t]he individual has not previously had proceedings dismissed under . . . MCL 769.4a” and “[t]he domestic violence offense is eligible to be dismissed under . . . MCL 769.4a.” MCL 600.1098(4).
1.Conditions of Probation in Deferred Proceedings
“The terms and conditions of probation may include participation in a drug treatment court under . . . MCL 600.1060 to [MCL] 600.1084.” MCL 750.350a(4).
In addition, a veteran or an individual who is on probation and whose proceedings have been deferred under MCL 750.350a may be admitted into veterans treatment court or mental health court as a condition of probation. See MCL 600.1203(2)(b)(iii); MCL 600.1093(2)(b)(iii).
See also MCL 771.3, which provides probation conditions that must be included in the sentence of probation as well as probation conditions that may be included.
2.Court Records in Deferred Proceedings
MCL 750.350a(5) requires “[a]ll court proceedings under [MCL 750.350a] [to] be open to the public.” However, if the sentence is deferred under MCL 750.350a, the record must be closed to public inspection during the deferral period “[e]xcept as provided in [MCL 750.350a](6)[.]” MCL 750.350a(5).
MCL 750.350a(6) provides that “[u]nless the court enters a judgment of guilt under [MCL 750.350a], the department of state police shall retain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under this section. However, the nonpublic record shall be open to the following individuals and entities for the purposes noted:
(a) The courts of this state, law enforcement personnel, the department of corrections, and prosecuting attorneys for use only in the performance of their duties or to determine whether an employee of the court, law enforcement agency, department of corrections, or prosecutor’s office has violated his or her conditions of employment or whether an applicant meets criteria for employment with the court, law enforcement agency, department of corrections, or prosecutor’s office.
(b) The courts of this state, law enforcement personnel, and prosecuting attorneys for the purpose of showing either of the following:
(i) That a defendant has already once availed himself or herself of this section.
(ii) Determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under [MCL 600.1076](5)[.]
(c) The department of human services for enforcing child protection laws and vulnerable adult protection laws or ascertaining the preemployment criminal history of any individual who will be engaged in the enforcement of child protection laws or vulnerable adult protection laws.”
3.Fulfillment of Probation Terms or Conditions in Deferred Proceedings
If the defendant fulfills the terms or conditions of probation, the court must discharge the defendant from probation and dismiss the proceedings against him or her. MCL 750.350a(4). An individual is limited to only one discharge and dismissal under MCL 750.350a. MCL 750.350a(4).
Note: “Discharge and dismissal under [MCL 750.350a] shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including any additional penalties imposed for second or subsequent convictions.” MCL 750.350a(4).
4.Violation of Term or Condition of Probation in Deferred Proceedings
If the defendant violates a term or condition of probation, the court may enter an adjudication of guilt and proceed to sentencing. MCL 750.350a(4).
An indictment for parental kidnapping “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[7] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”8 MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.249] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan,” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
1 See People v McBride, 204 Mich App 678, 682 (1994), where the Court of Appeals held that MCL 750.350a(1) did not require a parent to be formally served with a custody order before being formally charged with parental kidnapping; rather, MCL 750.350a(1) “requires only that the party from whom the child is taken have ‘custody or visitation rights pursuant to a lawful court order at the time of the taking or retention.’” In McBride, 204 Mich App at 682, the defendant-biological father was properly charged with parental kidnapping under MCL 750.350a(1), where he absconded with the children before being formally served with an ex parte order that granted sole custody to the children’s mother.
2 See People v Reynolds, 171 Mich App 349 (1988), where the Court of Appeals found that the defendant-father could not be charged with parental kidnapping under MCL 750.350a(1) from the child’s mother where no custody or parenting time order existed, but the defendant-father could be charged with parental kidnapping under MCL 750.350a(1) where the grandparent, baby sitting the child at the time the defendant-father took the child and absconded, could be considered a person “having lawful charge of the child at the time of the taking or retention.”
3 For a thorough discussion of deferred proceedings under the Holmes Youthful Trainee Act, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 9.
4 For additional information on problem-solving courts, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 9, and problem-solving courts as they relate to juveniles, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 1. For additional information on problem-solving court programs, including standards and best practice manuals, see Problem Solving Courts.
5 For a thorough discussion of deferred proceedings under the Veterans Treatment Court Program, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 9.
6 For a thorough discussion of deferred proceedings under the Mental Health Court Program, see the Criminal Proceedings Benchbook, Vol 2, Chapter 9.
7 “The term ‘party charged’ simply refers to the party . . . who [is] charged with a crime to which the limitations and tolling provisions of MCL 767.24 apply.” People v James (Joel), 326 Mich App 98, 109 (2018) (the authority relied on by the trial court “for the proposition that, for the tolling provision to apply, defendant must have been a ‘suspect’ or an ‘accused’ prior to the expiration of the untolled limitations, [was] inapposite”).
8 “[T]he tolling provision in MCL 767.24 [does not] violate [a nonresident] defendant’s constitutional right to interstate travel or . . . equal protection under the law[.]” People v James, 326 Mich App 98, 101, 103, 104, 108, 112 (2018) (“the tolling provision [in MCL 767.24] only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s border”; “residents and nonresidents are not similarly situated for equal-protection purposes,” and there are rational grounds for “[t]he Legislature [to] distinguish[] between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes, . . . including the investigation, prosecution, and . . . the very discovery of previously unreported crimes”). Although the James Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(8), MCL 767.24(8) contains substantially similar language as the current provision found in MCL 767.24(11).
9 The Blackmer Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(1). However, it contains substantially similar language as the current provision found in MCL 767.24(11).