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Colorado Criminal Law – Colorado Custodial Interference and Parental Kidnaping Laws

A Colorado Example ( case ) of parental kidnaping and violation of a custody order by abduction – by Colorado Criminal Defense Lawyer for the Defense of Parental Kidnaping or Custodial Kidnaping Cases.

Obstructing a Parent’s Rightful Child Custody

Custodial interference (also called custody interference) means the taking or keeping of a child from the custodial parent with the intent to interfere with that parent’s rightful physical custody.

When a non-custodial parent does not return his or her child to the custodial parent from a scheduled visitation, or when the custodial parent refuses to allow visitation with the non-custodial parent in violation of the court’s order.  This can also occur when the parents have joint physical custody – in this case, even though the parent taking the child has physical custody rights to the child, he or she is still interfering with the other parent’s scheduled custodial rights.

Charging a Parent with Custodial Interference

Custodial interference is a crime in Colorado and can be punishable by jail time.

Defending Against the Charge of Custodial Interference or “Parental Kidnaping.”

Colorado, like many states, allows for certain defenses to custodial interference.

Imminent harm is a commonly accepted defense. In this defense, the parent removing the child claims to have interfered with normal custody rules because he or she fears for the child’s safety.

Other defenses include mutual consent and the belief that, if he or she did not take the child, the other parent would remove the child from the court’s jurisdiction (i.e. out of state or out of the country). Failure to receive court-ordered child support is not usually a valid defense against a custodial interference charge.

A Colorado Case of Custodial Interference – Parental Kidnaping

The Defendant, Randy R. Metcalf, was convicted by a jury who found him guilty of second degree kidnapping and violation of custody in the abduction of his daughter from his former wife’s home.

Metcalf’s former wife was granted sole custody of their daughter following the couple’s dissolution of marriage.  Thereafter Metcalf abducted the child and kept her for nine months. He  was subsequently arrested and convicted of misdemeanor custodial interference in another state, and the child was returned to the former wife.

Metcalf then abducted the child a second time, but was apprehended within a few hours and the child was again returned to the former wife.

His former wife and daughter thereafter moved to a different town.  He testified at his trial that he was concerned for the safety and welfare of his child, and, after following them to the new town, began conducting surveillance on his former wife and daughter. He testified that he was concerned about harm to his daughter because of his former wife’s lifestyle and wanted eventually to apply for legal custody of his daughter.

Despite his concerns for his daughter’s welfare, however, he did not contact the police or department of social services, nor seek custody through negotiation or any court proceedings.

One evening, after six weeks of surveillance, defendant observed that the five-year-old child had been left with a male babysitter. He testified that he watched the babysitter yell at his daughter to turn off her bedroom light and go to sleep.

Defendant left the vicinity and returned around 2:00 a.m. When he returned he observed that the door to the residence was ajar. He entered, saw that the babysitter was asleep, picked up his sleeping daughter, and carried her out of the apartment.

Defendant left the state with the child, and she remained with him for four years until he was arrested.

The Trial:

In this case the Colorado Court of Appeals found that Metcalf never attempted to contact the local police or appropriate child welfare agency regarding his supposed concerns for the safety and welfare of the child, but instead had set up his own surveillance. Further, he had never initiated any proceeding to obtain custody of his daughter. The only evidence that defendant was motivated by concern for the child’s safety consisted of his own self-serving statements.

Metcalf had been granted only supervised visitation rights and acted alone and without assistance of any person who had a court approved right to visitation with the child.

The Charges:

The Defendant was charged and convicted of second degree kidnaping under §18-3-302(1), C.R.S. which provides that:

Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnaping.

Section 18-3-302(2), C.R.S. provides that:

Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping.

Metcalf argued at his trial that second degree kidnapping under § 18-3-302(1), in contrast to second degree kidnapping under § 18-3-  302(2), requires that the accused “seize” the victim and that a “seizure” incorporates the notion of force.

He pointed out that, under § 18-3-302(2), the offender need only “take” a child not his own. Therefore, he argued that while the evidence would prove that he “took” his daughter, it did not show beyond a reasonable doubt that he “seized” his daughter, and thus, he cannot be guilty of the charged offe

He contended that the evidence had to show that some “force” was used in the abduction to constitute a violation of the statute, the word “seize” encompasses a mere taking. The Court disagreed.  The Court decided that since Metcalf conceded that the evidence established that he “took” the child, sufficient evidence existed to demonstrate that defendant seized the child within the meaning of the statute.

Section 18-3-304(1), C.R.S. provides that:

Any person, including a natural or foster parent, who, knowing that he has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody of his parent, guardian, or other lawful custodian commits a class 5 felony.

Second degree kidnaping requires the prosecution to prove beyond a reasonable doubt that the person taken did not consent to the charged action and that the action was without lawful justification, whereas the violation of custody statute does not require the proof of those elements.

The violation of custody statute requires a defendant to raise the affirmative defense of reasonable belief that the actor’s conduct was necessary or that a child fourteen or more years old was taken at the child’s own instigation before the prosecution must overcome that defense beyond a reasonable doubt.

The Crime of Violation of Custody Order:

Section 18-3-304(2), C.R.S.  provides that:

Any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian of the custody of a child under the age of eighteen years, commits a class 5 felony.

Here is the entire Law:

§ 18-3-304. Violation of custody order or order relating to parental responsibilities

(1) Except as otherwise provided in subsection (2.5) of this section, any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child’s parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony.

(2) Except as otherwise provided in subsection (2.5) of this section, any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child or parental responsibilities with respect to a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen years, commits a class 5 felony.

(2.5) Any person who, in the course of committing the offenses described in subsections (1) and (2) of this section, removes a child under the age of eighteen years from this country commits a class 4 felony.

(3) It shall be an affirmative defense either that the offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare, or that the child, being at the time more than fourteen years old, was taken away at his own instigation without enticement and without purpose to commit a criminal offense with or against the child.

(4) Any criminal action charged pursuant to this section may be tried in either the county where the act is committed or in which the court issuing the orders granting custody or allocating parental responsibilities is located, if such court is within this state.

Summary:

When a court ordered “non-custodial parent” – that is – a parent that has NOT been awarded court ordered custody of a child –  either violates the terms of the custody agreement (or “parenting plan”) or refuses to return the subject child(ren) to the custodial parent,

….this is referred to as “custodial interference.” 

While each state has different statutes in place for handling this offense, in most states custodial interference is a crime, even if the offending parent has some custody rights.  It can be defined simply as the taking / keeping of a minor child from his or her parent with the intent of interfering with that parent’s physical custody of the child. 

Custodial interference is usually dealt with on a case-by-case basis, using the original custody order and the type of interference as a guide.  Here is an overview of some common types of custodial interference:

• Parental kidnapping:  This is when one parent willfully absconds with one or more of the children, often going out of state or out of the country, to prevent the children from having a relationship with the other parent.  

• Custodial interference may be claimed when the offending parent fails to return the children to the target parent for scheduled parenting time in a timely manner, whether it is hours or days. 

• Also, when the offending parent fails to make the children available for agreed-upon parenting time in a consistent manner, or in accordance with the custody agreement.

• Restricting telephone contact with the children is another example of custodial interference, particularly if liberal phone access is included in the custody order. 

Any willful violation of an existing custody agreement may result in filing a contempt of court petition, which could mean fines or prison time for the offending parent, as well as modifications to the custody order, supervised parenting time, and reimbursement of attorney’s fees. 

A Denver Colorado Criminal Defense Lawyer can help you determine the best course of action for your situation if you are charged with the crime of Parental Kidnaping or Custodial Interference – contact the Law Firm of H. Michael Steinberg at the phone numbers provided.

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The Law with CaseLaw Annotations:

§ 18-3-304. Violation of custody order or order relating to parental responsibilities

(1) Except as otherwise provided in subsection (2.5) of this section, any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child’s parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony.

(2) Except as otherwise provided in subsection (2.5) of this section, any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child or parental responsibilities with respect to a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen years, commits a class 5 felony.

(2.5) Any person who, in the course of committing the offenses described in subsections (1) and (2) of this section, removes a child under the age of eighteen years from this country commits a class 4 felony.

(3) It shall be an affirmative defense either that the offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare, or that the child, being at the time more than fourteen years old, was taken away at his own instigation without enticement and without purpose to commit a criminal offense with or against the child.

(4) Any criminal action charged pursuant to this section may be tried in either the county where the act is committed or in which the court issuing the orders granting custody or allocating parental responsibilities is located, if such court is within this state.

(5) Repealed.

History. L. 71: R&RE, p. 422, § 1. C.R.S. 1963: § 40-3-304. L. 85: (4) amended, p. 618, § 11, effective July 1. L. 86: (5) added, p. 779, § 1, effective April 3. L. 98: (1) and (2) amended and (2.5) added, p. 1442, § 27, effective July 1; (1), (2), and (4) amended, p. 1403, § 56, effective February 1, 1999.

Editor’s Note:

(1) Subsection (5)(c) provided for the repeal of subsection (5), effective December 2, 1986. (See L. 86, p. 779.)

(2) Amendments made to subsections (1) and (2) by House Bill 98-1160 and House Bill 98-1183 were harmonized, effective February 1, 1999.

Case Notes:

ANNOTATION

Am. Jur.2d. See 1 Am. Jur.2d, Abduction and Kidnapping, § 35.

C.J.S. See 51 C.J.S., Kidnapping, §§ 31-33.

Law reviews. For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981). For article, “Recovering the Parentally Kidnapped Child”, see 12 Colo. Law. 1798 (1983).

Defendant failed to carry his burden of proving this section unconstitutional by being so vague and overbroad that it failed to give fair notice of the criminal activity proscribed and therefore denied due process. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977).

This section is not unconstitutionally overbroad because a statute preventing the taking of a child in violation of a court order regarding custody is a legitimate exercise of police power. People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Use of the word “custody” in subsection (2) is not unconstitutionally vague. People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Use of the words “an order . . . granting custody . . .” in subsection (2), is not limited or qualified by type and court will not read into statute an exception, limitation, or qualifier that its plain language does not suggest, warrant, or mandate; subsection (2) penalizes violations of temporary and permanent custody orders alike and the rule of lenity does not apply. People v. Sorrendino, 37 P.3d 501 (Colo. App. 2001).

Temporary “care and control” provisions of restraining orders issued pursuant to §§ 14-4-102 and 14-10-108 qualify as an order granting custody within the meaning of subsection (2). People v. Sorrendino, 37 P.3d 501 (Colo. App. 2001).

A person awarded permanent custody becomes for all practical purposes “a parent”. The legal custodian has a duty to care for a child, providing the basic necessities of life. The legal custodian has such rights to the exclusion of the natural parent. In addition, the general assembly has strengthened the position of a custodian through criminal sanctions for violation of a custody order. A natural parent may be charged criminally for violating a custody order if there is intent to deprive the custodian of custody of a child. U.S. v. Al-Ahmad, 996 F. Supp. 1055 (D. Colo. 1998) (decided prior to the 1998 amendment).

Violation of custody is a separate and distinct offense from second degree kidnapping. People v. Tippett, 733 P.2d 1183 (Colo. 1987); People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

Culpable mental state required by subsection (2) is the intent to deprive the lawful custodian of custody. No “knowing” mental state with respect to the custodial order itself is implied or needs be proven. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

Jury instructions adequately encompassed defendant’s theory of affirmative defense based on subsection (3). People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Effect of habeas corpus on custody decree. Where the original custody award of a child and a subsequent habeas corpus proceeding are in the same state, but in different courts, although the habeas corpus court would not have jurisdiction to test the wisdom of or to modify the custody decree, it can and should make the writ permanent to enforce the decree and should order the child returned to the one lawfully entitled to custody. Wood v. District Court, 181 Colo. 95, 508 P.2d 134 (1973).

Evidence in support of affirmative defense to violation of custody may be limited to defendant’s state of mind at or shortly before the time he took his daughter. People v. Mossmann, 17 P.3d 165 (Colo. App. 2000).

Exclusion of evidence of defendant’s state of mind led to the incorrect denial of defendant’s request for an affirmative defense instruction. People v. Mossmann, 17 P.3d 165 (Colo. App. 2000).

Evidence held sufficient. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977).

Applied in People v. Coyle, 654 P.2d 815 (Colo. 1982).

Cross References:

For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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