In People v Wambar, ____ Mich App ____ (Docket No 304116), released March 26, 2013, For Publication, Helmut Wambar helped La[Q]uanda Wambar, the child’s biological mother, abduct their child then age 6—withholding her from her legal guardian. They held the child until the police located them a few days later. The parental rights of both biological parents had been terminated earlier after an incident during which the young child ingested cocaine.
The mother pled guilty to attempted unlawful taking of a child, and did not appeal her conviction. Helmut plea bargained and in exchange for dismissal of several criminal-sexual-conduct and sexually-abusive-activity charges, he remained charged with kidnapping and with a custodial-interference charge. The latter was dismissed by the trial court. Helmut pled to the kidnapping charge, while preserving for appeal that he—as a “natural parent” of the child—could not be charge with kidnapping his own child. The Court of Appeals disagreed, concluding that defendant did not fit within the definition of “natural parent” in MCL 750.350(2), that his conviction was proper, and that the trial court did not erroneously deprive him of a defense.
A person should not maliciously, forcibly, or fraudulently lead, take, carry away, decoy, or entice away, any child under the age of 14 years, with the intent to detain or conceal the child from the child’s parent or legal guardian, or from the person or persons who have adopted the child, or from any other person having the lawful charge of the child. A person who violates this is guilty of a felony, punishable by imprisonment for life or any term of years. However, an adoptive or natural parent of the child should not be charged with and convicted for unlawfully taking the child. [Emphasis added]
MCL 750.350(1), MCL 750.350(2) Download MCL 750.350
A separate Michigan parental kidnapping statute, however, applies to parents abducting their own children. The benefit to Helmut of being charged under this particular statute is that a first-time offense carries no prison or jail time and there is a complete “out” for a parent under certain circumstances:
(5) It is a complete defense under this section if a parent proves that his or her actions were taken for the purpose of protecting the child from an immediate and actual threat of physical or mental harm, abuse, or neglect.
MCL 750.350a Download MCL 750.350a
A further benefit of the parental abduction statute is that a deferred sentence is allowed, the accused parent is placed on probation with lawful terms and conditions, which may include participation in a drug treatment court, and expungement of the record is automatic upon successful completion of probation. In this case, the trial court sentenced defendant to five years’ non-reporting probation and ordered that defendant have no contact with the victim, AW.
Helmut argued on appeal that his conviction must be reversed. He claimed that because the child was his biological child, despite the fact that his parental rights had been terminated earlier, he was still a “natural parent” and therefore, he could not be charged under the kidnapping statute.
The court of appeals disagreed and affirmed. In doing so, the COA carefully defined the interpretation of “natural parent,” and held that because Helmut’s parental rights had been terminated, he is not a “natural parent” of the child and he is, therefore, not immune from prosecution under the criminal kidnapping statute.
It is important to note that the parental abduction statute, MCL 750.350a has been amended effective on April 1, 2013, only a few short days away.
The amended parental kidnapping statute may be read here.
Download MCL 750.350a-amended
The Court of Appeals’ majority opinion in People v Wambar may be read here. Download People v Wambar [METER, Fitzgerald]
The concurring opinion of Wilder, J may be read here: Download People v Wambar, Concurring