Child Abduction & Necessity

CHILD ABDUCTION / NECESSITY

1st Dist. People v. Azizarab No. 1-99-3552 (December 4, 2000) 1st div. (TULLY) Affirmed.

The defense of necessity is defined as: "Conduct which would
otherwise be an offense is justifiable by reason of necessity if the
accused was without blame in occasioning or developing the situation
and reasonably believed such conduct was necessary to avoid a public
or private injury greater than the injury which might reasonably
result from his own conduct." 720 ILCS 5/7-13 (West 1998).
A.N. was born in February 1997 with cocaine in his system. The court
determined A.N. to be neglected by his mother and the man then
believed to be the natural father, adjudged a ward of the court and
placed in the custody of DCFS on July 8, 1997. Defendant pursued his
right to obtain legal custody of A.N. During this time, he was
granted limited supervised visitation with A.N. During a supervised
visit in July 1998, defendant abducted A.N. from a scheduled visit
at a McDonald's restaurant. Defendant and A.N. were discovered in
Morris, Illinois two days later. Defendant was arrested and charged
with child abduction.

The trial court rejected defendant's defense of necessity holding
defendant did not meet the requirements of the defense because he
was aware that he had other, legal alternatives to enforce his
rights to obtain custody of his child. Therefore, abduction was not
the sole reasonable remedy available to defendant.

On appeal, defendant framed the issue presented for consideration to
this court as follows: "Where a caring father observes the apparent
mistreatment of his son during their two year separation in the slow
child welfare system with no chance of their reunification in the
near future, may he take custody of his son on grounds of
necessity?" The answer was a "resounding no". Defendant was properly
convicted of child abduction and sentenced to eighteen months
despite his claimed defense of necessity. Father's frustration with
protracted litigation in which child was placed in custody and
guardianship of DCFS does not excuse his running away with child
from caseworker; and there was no reasonable imminent threat to the
child justifying defendant's conduct.