We live in some extraordinary times; ones where citizens seem to think that they can or sometimes must take the law into their own hands. The idea that a parent could be guilty of a misdemeanor, let alone a felony, for keeping or taking their own child seems entirely counterintuitive. But a recent Chester County case tells a story that appears worthy of note.
Rebecca Kirschenbaum is the mother of a seven year old son by a man named Russell Matthews. Soon after the child was born Rebecca started a custody action which was resolved by a order entered in May, 2014. From that time, the court docket fell silent until early in 2021. Alas, in June, 2020 the police department in Phoenixville, Pennsylvania received information that two children in Kirschenbaum’s care were being neglected. When police and juvenile investigators attempted to interview Rebecca and her boyfriend, she never responded. When they contacted Mr. Matthews he indicated that he had partial custody but had not seen his son since March.
Almost a year later in February, 2021 Ms. Kirschenbaum was arrested on felony charges of interfering with custody of a child and concealment of the whereabouts of a child. These criminal laws have been on the books since 1984 but prosecutions have been relatively rare. In this case the charges were based on her refusal to produce the child to investigators performing their lawful duties.18 Pa.C.S. 2901A14. But the charge could have been as easily brought because the court ordered custodial rights of Mr. Mitchell were denied when he was denied access. That statute is 18 PaC.S. 2904 and it, too, can be a felony involving more than a year in prison.
Almost any district attorney in Pennsylvania will privately tell you that they are not looking to bring these charges. Where there is a custody order, the nearly universal solution is to allow enforcement of the order through indirect civil contempt proceedings. That may involve, fines, awards of counsel fees and costs but those are intended to be more remedial than punitive. Imprisoning a parent is a remedy that inflicts real pain not just on the parent but the child as well.
So how did this come about? Unfortunately, we won’t find out in any official way because Ms. Kirschenbaum represented herself and refused to present any substantive defense. The interference with child custody criminal statute is replete with substantive defenses where the defendant can show a good faith belief that the child was in harm’s way or that the child was over 13 and refused to comply with a court order.
In this case, the mother was arrested and incarcerated. Bail was set at $75,000. The district attorney offered a plea deal that would have allowed Ms. Kirschenbaum to leave prison based on her pre-trial incarceration of more than nine months. She refused. When the Court asked if she wanted to employ her own counsel or have counsel appointed for her, again the answer was negative. She was not entirely mum. She informed the judge that she was there under duress, challenged the jurisdiction of the court and then advised that she wanted the matter “cleared up and cleaned out.” Other than those observations she sat through a jury trial that saw her conviction for two felonies. The minimum sentence under state guidelines is two years. The maximum exceeds 17 years.
The local newspaper in West Chester, Pennsylvania has suggested that these defenses are emblematic of a group identified as the “sovereign citizens” movement. Present in several English speaking countries, the groups claim that most government functions lack legitimacy and they craft their own terms of what is and is not legitimate government to whom they will answer.
There are two lessons here. The first is that while law enforcement is not seeking to make every custody dispute into a crime, there are laws that allow them to do just that. Rarely do criminal statutes set forth substantive defenses for those charged, but again, lawmakers and district attorneys do not aspire to send people to state penitentiaries for pedestrian custody disputes.
In this case, the defendant allowed her anti-government beliefs to back her into what could be a significant sentence and two felony convictions that are now a matter of public record. She also put the taxpayers and voters summoned to jury duty through a painful process where it appears that no one wanted her incarceration to continue. Last, but not least, for reasons which the defendant chose not to reveal, two children will be without her for what may be 3 years or more. Saddest of all, children ages five and seven tend to think they are responsible for events like this.