Legislative Act: Section 40-3-6-9A of the state criminal code provides that a noncustodial parent may be convicted of custodial interference when the noncustodial parent “maliciously takes, detains, conceals, entices away, or fails to return the child, without good cause, for a protracted period of time.”
Assume there is no case law on point in the jurisdiction relevant to the following fact situation.
Facts: Mary has primary custody of her son. The father, Tom, has legal custody for two months in the summer. Tom takes the son for two months in the summer but fails to tell Mary where the son is and does not allow her to communicate with him. Before he leaves with the son, Tom tells Mary, “I’m going to punish you for the way you’ve treated me.”
Assignment: Mary presents the following arguments in support of her claim that Tom is in violation of the statute. What are the counterarguments to each argument?
Part A Tom’s actions constitute concealment within the meaning of the statute.
Part B Same facts, but when Tom is leaving, he says, “Since you wouldn’t allow me to communicate with him when you had custody, I’m going to do the same.” Mary argues that Tom’s actions constitute concealment.
Part C Same facts except that Tom says nothing when he picks up the son.
Part D Tom allows the son to communicate with Mary, but he returns the son one day late. Mary argues that this constitutes failing to return the child without good cause for a protracted period of time.
Part E Same facts as in part D except that Tom returns the son two weeks late.
Part F Same facts as in part E except that Tom explains that he was unable to return the son on time because his car engine blew up, and it took two weeks to fix it.