Judge Dismisses Charge In Parental Kidnapping Case

October 05, 1990|By Jay Apperson | Jay Apperson,Staff writer

Nancy McAfee flew to British Columbia searching for her estranged husband and their 2-year-old son, Alan. To her, Daniel Joseph McAfee was a kidnapper.

But the law was not on Nancy McAfee's side yesterday, when a Circuit Court judge dismissed a charge of parental kidnapping against her husband.

Afterward, Nancy McAfee complained that her husband had escaped on a "loophole."

"I think it was the wrong decision. I'm angry about the whole thing," she said before walking away in tears.

The case turned on an element in the parental kidnapping law requiring the child's legal custodian to demand the return of the child. If the child is not returned within 48 hours, the offense is a misdemeanor punishable by 30 days in jail and a $250 fine. If the parent who has lost custody of the child fails to return him within 30 days, he faces a felony and a year in jail with a $1,000 fine.

In the McAfee case, Judge Bruce C. Williams ruled, the mother got a court order granting her custody, but she never made a legal demand for the child until her trip to British Columbia -- a trip that ended with the husband turning over the boy to the mother.

Assistant State's Attorney Steven Sindler said the dispute began last Jan. 29, when Daniel McAfee took the boy from his wife as they were walking out of their apartment in the 8200 block Grainfield Road in Severn. On Feb.

3, the mother obtained a court order granting her temporary custody of the boy.

Six days later, a private detective followed the husband as he drove from Anne Arundel County to the Potomac Mills Mall in Woodbridge, Va.

There, the private detective served Daniel McAfee with the custody order, but Virginia police said state law did not allow them to detain the man or the child, Sindler said.

In late February, Nancy McAfee contacted an FBI agent because she believed her husband had taken the boy to Canada. The FBI agent called the Royal Canadian Mounted Police, and on March 12 she flew to British Columbia and found her husband and son at a campground, Sindler said.

She hired an attorney and, two days later, convinced a Canadian court to uphold the Anne Arundel judge's custody order. She was reunited with her son.

Sindler argued that the custody order met the legal requirement of a demand, but Williams sided with defense attorney C. Edward Middlebrooks' argument that the order was vague.

"No one ever told him he had to return that child," Williams said.

"Beyond that, when a demand was made the child was returned.

"I don't know why this has gotten to the point it's in criminal court.

It's gotten a little carried away, I suppose, because Mr. McAfee went to British Columbia, which he shouldn't have done."

The judge said contempt of a court custody order and criminal kidnapping were two different matters, and he dismissed the case.

Afterward, the wife complained she tried to locate her husband to demand the return of her son. "I couldn't find him to do that," she said.

Middlebrooks said the wife was vindictive and was "playing games with the criminal law to get an advantage in the civil arena." Middlebrooks added, "It's a nasty divorce."

He said the mother has temporary custody of the boy, now 3, pending the resolution of the divorce.

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