Concealing a Minor Child From a Person Having the Right to Parenting Time Requires Proof that Defendant Hid the Child to Prevent Locating or Contacting the Child.

State v. Fitman, Minn.Ct.App., 2/23/2012.  Ms. Fitman and M.B. had two kids, got divorced, and were granted joint legal custody; Ms. Fitman got physical custody and M.B. got a visitation schedule that neither of the parents always followed.  They eventually argued about something, which led to more arguments over the visitation schedule.  The state charged Ms. Fitman with concealing minor children from M.B. in violation of Minn.Stat. 609.26, subd. 1(1).  A jury convicted her.

The problem was, the state didn’t prove that she concealed the kids.  Whenever the cops showed up to referee the visitation disputes, they never saw the children (because they were concealed?).  Moreover, the state presented no evidence that Ms. Fitman was intentionally preventing M.B. from either observing the kids or discovering their whereabouts.  Indeed, the only reason that the cops bothered to come out to Ms. Fitman’s place was because assumed that the kids were there, and each time they came out the cops threatened to forcibly remove the kids which they would not have done had they not believed that the kids were there to be forcibly removed. 

So, concealment prosecutions are not for garden variety spats between estranged parents over week end visitation with the kids who are cowering under the bed; the state has to be able to prove that a defendant hid the kid of kept the person have a right to parenting time or custody from discovering the kid’s whereabouts.