In many domestic cases, factual situations may arise that can arguably lead to the elements of criminal charges being satisfied: one such example is Felonious Restraint. Felonious Restraint is a Class F Felony, and conviction of the offense can be punishable by a maximum sentence of 33-49 months in the Department of Adult Corrections. Felonious restraint has two general factual scenarios: restraint of a child under the age of 16, and restraint a person over the age of 16.
To satisfy the elements of the offense in the context of a child, a person need only transport an unlawfully restrained child under the age of 16 in a car or other “conveyance,” without the consent of the child’s parent or custodian. If your child who is under the age of 16 sneaks out of your home, is picked up by another person and goes somewhere without your consent, all of the elements for Felonious Restraint, other than whether they were unlawfully “restrained[,]” have arguably been met. Restraint in the legal sense does not mean what it does in its normal use, as the person need only have their movements restrained by force, by fraud, or by threat, even if they are not actually confined. Therefore, if the person who picks up your child entices them to come along by lying to them with the promise of candy, the facts may suffice.
One fact in every case can change the possible criminal charges. Say, for example, you are so mad at your ex-spouse that you want to scare them, and when it is your time to have visitation with your child, you decide to take them on “vacation” outside of North Carolina without telling your ex. While you would arguably not be guilty of Felonious Restraint due to the fact that you are the child’s parent, there are other criminal charges you may be found guilty of. If you take your child, for example, with the intent to violate a custody order, you could be found guilty of a Class I felony in North Carolina, punishable by a maximum sentence of 10-21 months in the Department of Adult Corrections. In fact, the legislature of North Carolina included a clause in the statute providing that just removing the child from the State for over three (3) days can be sufficient evidence to satisfy the “intent to violate” requirement.
However, noncustodial parents can be found guilty of Abduction of Children, a Class F felony punishable by a maximum sentence of 33-49 months. To form the factual basis for Abduction, which has many similarities to the Class I felony discussed above, a person need only induce a child who is more than four (4) years younger than the abductor to leave the place or person who has legal custody or care of the child without legal justification.
Furthermore, very little differentiates Felonious Restraint and Kidnapping, which is a significantly more serious criminal offense. Kidnapping can either be in the 1st degree (a Class C Felony, punishable by a maximum sentence of 146-188 months) or in the 2nd degree (a Class E Felony, punishable by a maximum sentence of 50-72 months). The main difference between Felonious Restraint and Kidnapping (whether it be of the Class C or Class E variety) is the purpose behind the restraint; the statute defining kidnapping lists ten (10) possible reasons the person is restrained, whereas for Felonious Restraint the purpose is mostly irrelevant.
Even more criminal charges which may arise out of similar facts exist, such as the common law offense of False Imprisonment, which is a Class 1 misdemeanor punishable by a maximum sentence of 120 days in jail. To form the basis of this charge, a person need only unlawfully restrain or detain a person without their consent. Many issues arise as to whether the actions were done unlawfully, such as in the situation involving shoplifters being detained by store security.
Hiring an attorney who is experienced in handling matters of this serious nature will prove to be extremely beneficial, given the severity of the possible sentences imposed and the similarities between the various possible charges. At Arnold & Smith, PLLC, we have criminal defense attorneys who have dealt with a wide range of criminal charges, as well as domestic attorneys to try and ensure misunderstandings or poorly worded custody arrangements are not entered in your case. Contact our office today to schedule a consultation with an experienced attorney.