The Appeals Court has upheld a jury’s verdict convicting Robert Sabin of “parental kidding” after he attempted to take his son on vacation in defiance of a court-ordered custody agreement.
According to the custody agreement, Robert had “parenting time” with his five-year-old son every other weekend. On the weekends when Robert had custody, the mother would pick up the child on Sunday at 6 p.m.
Per the agreement, Robert took custody of his son in late July 2020. Before the weekend began, Robert told the boy’s mother several times that he intended to take the child to an amusement park in New Jersey for a six day vacation. The mother told Robert, via text, that she “was not in agreeance to that.” Despite that mother’s lack of “agreeance”, Robert did indeed begin his father-son trip to New Jersey. He got as far as Connecticut before the mother realized what was going on and contacted police.
An officer called Robert who was already on Route 95 and just a few hours away from his amusement park destination.
The officer described his conversation with Robert in a subsequent police report:
I began to discuss the matter further with him, specifically in regards to the custody agreement. Robert clearly told me that he was aware of violating the order but that he would deal with a civil contempt charge regardless. I then informed Robert that as he had taken [the child] out of the Commonwealth against the directives of an order, he was in fact committing custodial kidnapping. He claimed not to have been aware of the provisions surrounding such an offense.
Robert turned around and drove back to Massachusetts with his boy. The boy was delivered to his mother around 1 a.m. Thus, Robert exceeded his “parenting time” by 7 hours (6 p.m. to 1 a.m.). The police charged Robert with parental kidnapping pursuant to M.G.L. c. 265, § 26A. The applicable portion of that statute states,
Whoever, being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period…shall be punished by imprisonment in the house of correction for not more than one year or by a fine of up to one thousand dollars, or both.
The offense is escalated to a felony if, as in Robert’s case, the child is taken outside the state:
Whoever commits any offense described in this section by taking or holding said child outside the commonwealth…shall be punished by a fine of not more than five thousand dollars, or by imprisonment in the state prison for not more than five years, or by both such fine and imprisonment.
In January 2022, the case was brought to trial in Plymouth District Court. The jury convicted Robert of the felony. He appealed the verdict claiming that there were insufficient facts to convict him. The Appeals Court upheld the verdict.
Where, as here, the Commonwealth alleged that the defendant intended to hold the victim for a protracted period of time, the actual amount of time the victim was held is material only to the extent that it illuminates the defendant’s intent. In light of the way the Commonwealth prosecuted this case, we do not reach the question whether the length of time for which the defendant actually held the child — approximately seven hours, from 6 P.M. until 1:05 A.M. — would constitute a “protracted period” within the meaning of § 26A. If the confinement is interrupted by police involvement before a protracted period of time has passed, which we may assume it was here, it is the defendant’s intent that controls. Given this posture, the defendant challenges only whether the six days he admittedly intended to hold the child could constitute a “protracted period” of time. We conclude that it may.
To read the full opinion, click the document below.
Law Office of Justin R. McCarthy 