Bob CollinsEvery so often — and too often — a case hits the Minnesota Court of Appeals that is an example of how children are caught in the middle of custody disputes between adults. Equally often, the Court illustrates why legislators have to be precise when passing laws. Today, a case related to both.
The Court of Appeals today overturned the conviction of a woman on charges she hid her children from their father a custody dispute.
The case stems from an argument in 2010 between Tammy Fitman of Austin and the father of her two children. After an argument over the father’s intention to claim the children as dependents on his taxes, Fitman did not allow the father to have custody of the children for the following weekend, though he was supposed to have custody every other weekend.
Later, Mrs. Fitman refused to allow the father custody on Easter, even though the divorce decree spelled out where the children would go on each Easter.
Today’s court ruling tells the rest of the story:
The Fitmans expressed concern that M.B.’s (the father) residence was unfit for children, referencing a specific allegation that had previously been investigated and found to be without merit. The lieutenant explained that the allegation had been investigated and that the Fitmans could be charged with a crime if they did not allow M.B. visitation. The Fitmans continued to refuse. M.B. then agreed to allow the matter to go through the courts rather than to have the police physically remove the children from the home. Again, although the police and M.B. were not allowed to see or speak with the children, there is no evidence to suggest that they did not know the children were at the Fitmans’ residence.
Fitman was charged with concealing minor children from a parent. She was found guilty.
In its decision today, the Court focused on the meaning of one word: “conceal.”
The common definition of the word “conceal” is “[t]o hide or keep from observation, discovery, or understanding; keep secret.” The American Heritage Dictionary 304 (2d ed. 1985).
The evidence does not support the conclusion that appellant concealed the children, and the state did not attempt to prove that she did conceal them. Concealing children requires actively hiding them or attempting to keep another from discovering their whereabouts. While neither M.B. nor the police saw the children at the Fitmans’ house on March 12 or on April 2, there was no evidence that appellant intentionally prevented M.B. from observing them or discovering their whereabouts. The record does not suggest that the children were not at appellant’s home, that appellant was hiding them, or that M.B. did not know they were there.
Moreover, two facts indicate the contrary. First, M.B. and the police came to the Fitmans’ home on March 12 and on April 2 because they assumed the children were there; second, the police and M.B. discussed the possibility of forcibly removing the children from the home, which they would not have done if they had not thought the children were in the home. This evidence supports the conclusion that appellant was not concealing the children.
The Court said “conceal” in custody cases generally means parents who go into hiding with the children.
