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

Text

(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 childs 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(5) Repealed.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

History.
Source: 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.

Annotations

Editors 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.

Cross references: For affirmative defenses generally, see 18-1-407, 18-1-710, and 18-1-805.

ANNOTATION

Law reviews. For article, Mens Rea and the Colorado Criminal Code, see 52 U. Colo. L. Rev. 167 . 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 defendants 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 defendants state of mind at or shortly before the time he took his daughter. People v. Mossmann, 17 P.3d 165 (Colo. App. 2000).

The determination of temporal limitations upon the admission of affirmative defense evidence is within the sound discretion of the trial court. People v. Beilke, 232 P.3d 146 (Colo. App. 2009).

Exclusion of evidence of defendants state of mind led to the incorrect denial of defendants 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).