Stein, J.c.c., Temporarily Assigned.
Defendant moves to dismiss this two-count indictment charging him with breaking and entering with intent to kidnap (N.J.S.A. 2A:94-1) and conspiracy to kidnap, N.J.S.A. 2A:85-1 and 98-2). R. 3:10-3.*fn1
The threshold question on this motion is simply stated: In the absence of an order of custody, is a person who assists a parent in obtaining exclusive possession of a child guilty of the crime of kidnapping?
The question is apparently not yet decided in New Jersey. Indeed, there are few decisions throughout the country which deal with the issue. Annotation, "Kidnapping or other criminal offense by taking or removal of child by, or under authority of, parent, or one in loco parentis," 77 A.L.R. 317 (1932).
Since each parent has an equal right to custody of a child in the absence of a court order, a parent does not commit the crime of kidnapping by taking exclusive possession of the child where no such order exists. Annotation , 77 A.L.R., supra at 317; 51 C.J.S. Kidnapping § 4 at 506-507.
There is a distinct split of authority as to whether an agent or other person assisting a parent to gain exclusive custody of a child can be guilty of kidnapping.
Holding the parent's agent or assistant immune from prosecution for kidnapping are People v. Nelson , 322 Mich. 262, 33 N.W. 2d 786, 788 (Sup. Ct. 1948); State v. Elliott , 171 La. 306, 131 So. 28 (Sup. Ct. 1930); People v. Workman , 94 Misc. 374, 157 N.Y.S. 594 (Cty. Ct. 1916).
The contrary view is that the immunity from prosecution is personal to the parent, and one who assists the parent is guilty of the offense. State v. Brandenburg , 232 Mo. 531, 134 S.W. 529, 530 (Sup. Ct. 1911); Wilborn v. Superior Court of Humboldt County , 51 Cal. 2d 828, 337 P. 2d 65 (Sup. Ct. 1959).
There are frequently mitigating circumstances which might rule out maintenance of a kidnapping charge against the parent's "helper" in these unfortunate custody struggles. For example, in People v. Nelson, supra , defendant was the child's uncle (brother of the child's parent). Defendant assisted his brother in retrieving the child from the mother, who had previously taken the child from the father during a period of visitation. The Michigan Supreme Court ruled that the kidnapping statute of that jurisdiction
The facts in the present case hardly portray defendant as a prime candidate for compassion. He is no brother, sister, or close friend of a distraught parent. Rather, he is
a self-styled "private investigator" or "private detective" operating out of the State of Florida. It is clear that his actions in this case were at all times ...