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§ 948.31, Interference with Child Custody – Sufficiency of Evidence – Presence of Parent

State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris

Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:

¶18   The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so. The other two methods speak to situations where the parent has given no permission to the person who “causes a child to leave” or “takes a child away.” See Wis. Stat. § 948.31(2). Bowden’s argument that “causes … to leave” means from the parent’s actual presence suggests that parental custody ends when the child is out of the parent’s presence. Without commenting on the merit of that position, to adopt it would require that we add words to the statute that are not there. We decline to do so. See Samuel, 240 Wis. 2d 756, ¶35.

¶19   Reviewing the evidence in the light most favorable to the verdict, we conclude that Bowden caused the boys to leave their mother within the meaning of the statute. Bowden approached the boys, drew them into conversation by means aimed at disarming children and, despite being told they had to go home, insisted they deviate from their route and follow him. The boys complied out of fear, a fear that was evident to the four occupants of the house. The brothers reiterated their mother’s rule about being home on time and that they would be grounded. Bowden overrode their resistance and persuaded them to act counter to their mother’s directives and authority. It is undisputed that their mother neither gave the boys permission to deviate from this directive nor Bowden permission to cause the boys to deviate from it. Regardless of whether Bowden’s conduct was sweetened with sports talk and basketballs, it amounts to mental manipulation of a child by doing things to persuade the child to leave the parent. See Samuel, 240 Wis.  2d 756, ¶37.

 

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