Parental Kidnapping – Custodial Interference Cases In Colorado – Section 18-3-304
By H. Michael Steinberg – Colorado Domestic Violence Criminal Defense Lawyer – Attorney
Parental Kidnapping – Custodial Interference Cases In Colorado – Section 18-3-304 (1) – While it is not called “parental kidnapping” – the violation of custodial order relating to parental responsibilities is a form of kidnapping that is much more complex.
The Colorado Violation Of Custody Order statute is located under the Colorado Kidnapping laws. There are many forms of kidnapping in Colorado. These are Colorado’s kidnapping and kidnapping related laws:
§ 18-3-301. First degree kidnapping
§ 18-3-302. Second degree kidnapping
§ 18-3-303. False imprisonment
§ 18-3-304. Violation of custody order or order relating to parental responsibilities
§ 18-3-305. Enticement of a child
§ 18-3-306. Internet luring of a child
This special form of kidnapping is charged under Section 18-3-304 C.R.S. of the Colorado criminal code.
There are essentially two ways to be charged under this law. You can be charged under this law – I have called these – Section (1) or Section (2) crimes. One requires the existence of some sort of Court Order (Section 2) – the other (Section 1) does not.
Studying the law: – as always – where all analysis begins – please start with the law – (always read the law, it is not just for lawyers!):
§ 18-3-304. Violation of Custody Order or Order Relating to Parental Responsibilities
[HMS – Section (1) does not require an order of custody. This section, a class 5 felony, requires only that the person taking the child does not have the legal right or privilege to do so – the legal right to decide the custody and or care of the child resides with another – or others – such as with the child’s “parents, guardian or other lawful custodian.
(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.
[HMS – Section (2) addresses cases where there is an existing Court Order, and there is an intent to deprive the lawful custodian – as designated by a Court – of the custody or he child.]
(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.
[HMS – Section (2.5) increases the punishment for either of these crimes to a class 4 felony if the child is taken out of the country.]
(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.
[HMS – Section (3) provides for an affirmative defense to this child if the accused “the offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare” or the child is older than 14, wanted to go with the accused and there is was no purpose to commit a crime.]
(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.
[HMS – Section (4) permits the case to be filed – charges to be filed in the county where the crime was allegedly committed or in the Colorado county where the court orders originated.]
(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.
The Penalties For A Colorado Class 5 Felony
As described – Colorado criminal law – 18-3-304 C.R.S., makes it a Class 5 felony to violate either Section (1) and Section (2) crimes:
Up to 3 years in a Colorado prison – [up to 6 years if you take the child out of the country), and/or a fine of up to $100,000 (or up to a $500,000 fine if the child is taken out of the country).
To Fully Understand Any Colorado Crime – Always Study The Colorado Criminal Jury Instructions For That Crime
One of the best ways to understand a crime is to study the elements of that crime. The Colorado Criminal Jury Instructions perform that function – that is – breaking a crime down into it’s “elements.”
These are the instructions of law given to Colorado Juries before the deliberate in Colorado jury trials.
Section (1) Crime: Violation of Custody (Taking or Enticing)
The elements of the crime of violation of custody (taking or enticing) are:
1. That the defendant, whether or not he [she] was a natural or foster parent of the child,
2. in the State of Colorado, at or about the date and place charged,
3. knowing that he [she] had no privilege to do so or heedless in that regard,
4. took or enticed any child, under the age of eighteen, 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.
[5. and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]
The Section (2) Crime: Violation of Custody (Court Order)
The elements of the crime of violation of custody (court order) are:
1. That the defendant, whether or not he [she] was the child’s parent,
2. in the State of Colorado, at or about the date and place charged,
3. violated 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 to any person, agency, or institution,
4. with the intent,
5. to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen.
[6. and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]
Colorado Parental Kidnapping Cases – (Also Called Custodial Interference Cases) Are -Most Often – Very Fact Specific
Defending against the charge of parental kidnapping may center on successfully raising the affirmative defense built right into the law.
When the affirmative defense is successfully raised at trial – the jury is given the following instruction:
The Affirmative Defense To Colorado Parental Kidnapping – Custodial Interference Cases
The evidence presented in this case has raised the affirmative defense of “child in danger” or “child not enticed”, as a defense to violation of custody.
The defendant’s conduct was legally authorized if:
1. she reasonably believed that her conduct was necessary to preserve the child from danger to his welfare
or
1. the child was at the time more than fourteen years old, and
2. s/he was taken away at her own instigation,
3. without enticement, and
4. the defendant had no purpose to commit a crime with or against the child.
The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, [at least one of] the above numbered condition[s].
The Law Does Not Distinguish Between A Permanent Versus A Temporary Custody Order
Section 18-3-304 does not limit the applicability of Section (2) crimes to only permanent custody orders. The purpose underlying the enactment of the statute was designed to deter abductions of children from their lawful custodians. The law seeks to protect – mostly parents who have been awarded exclusive custody of a child against the unlawful seizure and removal to another state by the one who has lost legal custody and control.
Even temporary custodial rights find protection under this law. The reason temporary custodial orders are included is that, unless they are included parents would have an incentive to abduct their children during the pendency of permanent custody proceedings.
Therefore the law includes even temporary “care and control” of the child orders as an order granting “custody” within the meaning of § 18-3-304(2).
A Closer Look At Defending Colorado Parental Kidnapping Cases – The Affirmative Defense
A Defendant is entitled to a jury instruction on the affirmative defense to these crimes IF there is evidence presented at trial to support the defense. If this is some evidence for the defense, regardless of how improbable or unreasonable the defense might be in the case – the defense can be used by the defense to defeat the State’s case.
Restated – the law is this – it is an affirmative defense to the charge of violation of a custody order that the defendant “reasonably believed that his conduct was necessary to preserve the child from danger to his welfare….” But the Defendant may not be allowed to “get everything in” as to the relationship between the competing custodial parties.
Colorado Trial Judges will most likely limit the kinds of evidence offered in support of affirmative defense to violation of custody limiting that evidence to . The Judge will limit the evidence, in most cases, to the defendant’s state of mind at or shortly before the time, the child was abducted.
If the affirmative defense is successfully established by the Defendant at trial, it acts as a complete bar to conviction of the offense charged.
Some “Umbrella” Defenses That May Apply To A Charge Of Parental Kidnapping – Custodial Interference In Colorado
While the primary defense to an accusation of parental kidnaping is evidence that you reasonably believed that your conduct was necessary to preserve the child from danger to his/her welfare, other defenses include:
- No Enticementa. – the child was more than fourteen years oldb. – that you took the child at his or her own instigation, without enticement,c. – that you had no intent to commit a criminal offense with or against the child.
- You had the legal right to take the child – (example – the parent or legal guardian approved the trip.)
- You were unaware that you had no legal right to take the child.
- You had no intent to deprive the parent – or other legal guardian – of their legal custody.
The More Common Fact Pattern – Taking Your Child Out Of State Prior To A Colorado Child Custody Case Being Filed – What Is There A Custody Order?
Section 2 crimes can be also analyzed from a temporal perspective – when was the custody order entered?
Here’s the analysis:
First – has a domestic relations court case been filed?
Second – if a case has been filed – were you been served? – In the absence of a valid Court Order regarding custody it is NOT A CRIME to leave the state with your children without permission of the other party. The law has always been that both parents have the legal right to their children unless a Court Order changes that basic and fundamental truth.
Note this: the police will always ask – before interfering in a parental dispute over the children – is there a civil court order “re-defining” the accused parent’s basic and fundamental rights to control the location of their own children? If not – then they will take no action.
Summary And Conclusion – Parental Kidnapping – Custodial Interference Cases In Colorado – Section 18-3-304
Section 18-3-304 essentially creates two different methods of committing the crime of parental kidnapping – custodial interference
SECTION 1 CRIMES – 18-3-304 (1) C.R.S. creates the felony 5 crime for anyone — which can include a biological or foster parent – to take or entice any child under the age of 18 years from the custody or care of the child’s parents, guardian, or other lawful custodian or person with parental responsibilities – BUT the State of Colorado must prove beyond a reasonable doubt, that he or she KNEW that he or she had no privilege to do so OR that he or she acted in a way that was “heedless in that regard.”
SECTION 2 CRIMES – 18-3-304 (2) C.R.S. makes it a felony 5 crime for a parent or any other person to violate a court order granting custody of a child under 18 or parental responsibilities for the child. Here, the state must prove and even higher MENTAL STATE – INTENT. The State of Colorado must prove, beyond a reasonbale doubt, that it was the INTENT of the accused to deprive the lawful custodian or person with parental responsibilities of the custody or care of that child.
Parental Kidnapping – Custodial Interference Cases In Colorado – Section 18-3-304
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