All right, here we are. LawyerTalkPodcast.com we got Troy back at the table taking on questions, and it turns out we get this. This question came in@the lawyertalkpodcast.com interface, but it turns out we just handled this. Well, not just, but about a year and a half ago.

Yeah, something similar on it.

All right, so I'm not gonna go through the whole question because it's long and a little bit convoluted, but the gist of the question is, can you kidnap your own kids?

I thought this was very interesting because they're kids. Yeah, they're kids. I was thinking, how good is that possible? Because your parents. But then I was thinking of divorce parents.

I was like, okay, that comes up a lot.

Yeah. So that's when it, like, opened the door.

So here's where this comes up all the time. I mean, in fact, we had a burglary case not that long ago where this sort of comes up where dad's got the kids, mom wants the kids back, dad's not giving the kids back, call the cops, try to break in the house to get. Like, you can imagine, this happens all the time. Can you kidnap your own kids? What? A lot of times what sometimes happens is it's a situation like this, a custody situation, where it's a high conflict divorce, and mom is not giving the kids back to dad or vice versa, and say, it's the dad wants the kids back, calls the cops, says, ring a ling. A ling deputy dog comes out and says, is there any court orders? The dad's like, no, but this is my time with the kids.

Yeah, it's my kid. I mean, it's my blood.

Yeah, yeah. So if there's not a court order, the other parent, the deputy is going to tell you, has the same rights as you have. So a lot of times that is. No, you can't kidnap your own kid that way. But there are also times when. Yeah, so this is what lots of people call me with these kind of questions, and they say, what do I do? Even friends, they'll say, look, I'm going through this divorce. What do I do? I say, look, it sucks, man. I'm so sorry to hear that. Go get a court order so you can establish some rules of play as fast as you can. If you think it's going to be high conflict, I mean, even if you don't think it's going to be high conflict, if it becomes some sort of conflict and there's no rules in place, it gets really, really wishy washy. And this is the custody of the kids is a perfect example. So for instance, say you've got a court order that says I'm supposed to get the kids back at 6pm and mom, it's now the next day and mom isn't giving me the kids back. Now you're entering the realm of closer to kidnapping. Nobody's gonna charge your mom with that, though, generally speaking.

Well, hopefully not. Hopefully.

Right, right. But then you get the situations where dad gets involved and says I'm taking the kids to Florida and dads are correct. They're movie like this is like a movie story. I'm taking the kids to Florida and mom goes crazy. What do we do? So in that situation, if dad's got parental rights, so to speak, you know, in other words, there's a court order that says dad has equal amount of time and he's within his time, it's going to be tough to make a case.

Yeah. And one thing that the statute said, this is Ohio, by the way, but the statute talks about kidnapping is without privilege to do so.

So you're talking read the state. So look, we're talking about Hialeah Troy's going to read the Ohio elements of kidnapping.

So I don't have them up like that, but they're pretty much removing another person from a place where they are found and restraining the other person liberty without privilege to do so. That's the basic elements of it. Without reading it.

So look, when you say without, a lot of times you'll see without consent, say in a rape case or without privilege to do so. Privilege meaning there are sometimes we have a privilege to be with our own kids. So. Or let's say you have a court order even if you're not the parent and you've got a privilege to be with that kid. And say that might even apply to a situation where it's a daycare provider and they lock the doors, they don't want the kids to leave. Well, in theory it meets all the other elements of the statute, but there's a privilege there that you don't want the kids to leave the daycare and go wandering around the streets.

But these divorced parents, I imagine one of them was going through the court of appeals and they decided, hey, I have this privilege even though it's not really my time, because they had the blood. That's what I imagine. And this actually went all the way to the Ohio Supreme Court in State v. Hill. And they argue that you can't charge a parent with kidnapping.

So give us the facts.

Well, I don't have the facts on this one. I only have a brief summary right now. I'm sorry.

Make them up. So what's going on is one of the parents has the kids and their stay exceeded the custody order is basically what we're saying.

Yeah.

The other parent makes a complaint, they charge his parent, they being the state of Ohio, charges his parent with a crime called kidnapping or something similar. We have different versions of it. And the parent, the dad or whoever it is says, look, you can't do. I'm a parent. I have a privilege to have my kid. What does the court say?

The court says that the legislators would have made that clear in the language of it. And it's not. It says any person. So that means parents can be charged with kidnapping.

So parents can be charged with kidnapping. So you've entered the realm of a whole different area. We talked about this, I think last week. We have statutory law in Ohio, and it used to be in the old days that crimes were defined by common law, meaning it's just that's how we always did it. It was common to the law of the land. You can't murder somebody, or if you breach the clothes of a house, or we're using force, that's a burglary at night. Now, we have elements that are spelled out in black and white. And the General assembly here in Ohio, the legislative branches in the states and in the United States, they write the law, and the law says no person, it doesn't exclude a parent. It doesn't say no person other than a parent. It doesn't say no person other than a parent. And what the court is saying here. So this is great because it's similar to what I talked about last week. The court is saying here, look, we're going to interpret this law. And the defendant says, you can't charge me. I hereby challenge the law, or better. What probably happened here is the state presented its case at trial and at the close of the state's case, somebody like me stood up on behalf of the defendant, said, judge, I moved to dismiss. They can't prove this case because my guy has a privilege to be with a kid and you can't charge a parent as a matter of law. And the judge says, look, I'm going to interpret that differently. I'm going to say, you can charge a parent because if the General assembly, if the legislative branch wanted to carve out some exceptions for parents or otherwise, it would have done so, and it didn't. So therefore, you can now look, this is this separation of powers doctrine that everybody's bumping up against this day in bigger picture stuff, legislator writes the law, judges interpret the law, and the executive branch enforces the law. That's what happens.

Yeah.

So how the judge interpreted law here, the defendant challenged it, goes up to appeal. Yep. Appellate court says, no, you're wrong, and they uphold the conviction. So what happens, though is that a lot of people think, well, they, the judges are going to write the law or make up the law as they go, some sort of do sometimes. And it gets like there's play in the joints. It's not always obvious what a definition means. Then the judges have to interpret it. So it's not making up the law, it's interpreting what it says. And then a lot of times the courts of appeal or the high supreme court or the highest courts of land will say, look, it's not our job to write the law here. We can only say what the legislative said. If the legislative branch or the general assembly here in Ohio doesn't like it, well, guess what? Pull out your pens, get on your computer, write a new law, get the votes and pass it.

Don't write on your computer, preferably.

Right.

You get it.

You get it. So can you kidnap your own kids? Yes. No. Maybe. I suppose it depends. It all depends. So, but again, back to where we started. This is why it's imperative. Even if everybody's getting along and if everybody thinks it's cool, if you have an order that says what the rules of play are, even if you modify that or you change it a little bit and you know you're getting along great, that's awesome. But if it's a high conflict scenario, get an order. That way you know what the rules are. All right, you got a question, you got a comment, you want to talk about something? Go to LawyerTalkPodcast.com Leave us a question right here in the socials and we'll get or in the comments of the socials and we'll try to get to it.