Parental kidnapping – also called custodial interference – is a Colorado felony that carries up to six years in prison. Parental kidnapping occurs when either:
- you take or entice a minor child away from their lawful custodian knowing you have no privilege to do so; or
- you violate a child custody order with the intent to deprive the lawful custodian of the minor child’s custody or care.
In short, parental kidnapping is knowingly depriving someone of lawful custody of a child under 18 years old.1
What are examples of parental kidnapping?
Obvious instances that constitute parental kidnapping under Colorado family law include:
- A father with only supervised visitation rights in Denver takes his daughter to another state away from his ex-spouse and lives with her for nearly a year,2
- Parents secretly abduct their child from a foster home after losing custody of the child in a court case that had found them neglectful and stripped them of parental rights,3 and
- The day before a custody hearing in Colorado Springs, a father absconds with his daughter to Australia with an intent to stay there.4
Note that merely keeping a child from seeing or communicating with the other parent in violation of court orders counts as custody interference even if there is no physical “taking” of the child from one place to another.
Factors courts consider
Based on cases that refer to CRS 18-3-304, courts consider the following factors when determining whether parental kidnapping occurred:
- How long the child has been missing,
- If the child was brought out of state or out of the country in violation of a custody agreement,
- Whether the apparent abductor expressed an intent to keep the child, and
- Whether the adult with custody rights knew where the child was.
“On the fence” cases
Some instances of parental kidnapping are less clear. Temporary and fleeting custody mishaps can happen, like:
- A parent is late returning a child after visitation,
- A non-custodial parent takes their child on a trip out of state, but brings them back on time, or
- A custodial parent “forgets” about the other parent’s visitation rights for one week, depriving them of parenting time.
While these seem unlikely to amount to parental kidnapping, where the line is drawn remains hazy. To prevent parental kidnapping allegations, it is always a good idea to discuss your plans ahead of time with your co-parent and to give them a reliable phone number to reach the child.
What are the penalties for parental kidnapping?
In most cases, parental kidnapping is a class 5 felony in Colorado. Convictions carry:
- 1 to 3 years in Colorado State Prison, and
- $1,000 to $100,000 in fines.
Though if you take the child out of the country in violation of a court order, parental kidnapping becomes a class 4 felony. Colorado courts may impose:
- 2 to 6 years in prison, and
- $2,000 to $500,000 in fines.5
Contempt
Parental kidnapping may also subject you to contempt proceedings, which can include:
- jail,
- fines,
- paying the other parent’s attorney’s fees, and/or
- custody order modifications, which may result in your parenting time being supervised or otherwise restricted.6
You may face parental kidnapping charges merely for restricting telephone access to your child in violation of a court order.
How do I fight the charges?
Here at Colorado Legal Defense Group, I have represented countless people accused of kidnapping. In our experience, we have found these two defenses to be especially persuasive with judges, juries and prosecutors.
- The child was at least 15 years old and was taken away at their own instigation, without enticement, and you had no intent to commit a crime with or against the child. This typically happens with older teenagers who do not wish to see the other parent and leave the house on their own to avoid them.
- The “parental kidnapping” was necessary for your child’s welfare and safety. For example, you reasonably believed that the other parent was violent towards your child or would take the child to another jurisdiction or country with no plans to return.7
Note that if you are worried that your co-parent is planning on taking your child out of the country and plans to keep them there, consult with me before the trip occurs. I may be able to ask the judge for a court order preventing your co-parent from traveling internationally with your child.
Losing defenses
From our experience, it is not a winning defense to parental kidnapping charges that:
- The parental kidnapping statute is unconstitutionally overbroad8 or
- The other parent is behind on child support.
Burden of proof
As with every criminal charge, prosecutors have the burden to prove parental kidnapping charges beyond a reasonable doubt. Typical evidence in these cases includes:
- recorded communications, such as texts, emails, and voicemails;
- eyewitness accounts;
- surveillance video;
- GPS records; and
- travel receipts.
What happens if the child is taken outside of Colorado to a different state?
Colorado’s laws concerning parental kidnapping apply even if the child is taken to another state.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets exclusive and continuing jurisdiction for child custody issues in the child’s home state. This means that even if a child is parentally kidnapped out of Colorado to another state, Colorado law will still dictate what happens.9
Can non-parents commit parental kidnapping?
Yes. While parents usually are the defendants in parental kidnapping cases, they do not have to be. Non-parents and even people unrelated to the family can commit parental kidnapping.10
What is the parental kidnapping statute?
Colorado Revised Statute 18-3-304 CRS – 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.
How is parental kidnapping different from 1st- or 2nd-degree kidnapping?
For a parent to be guilty of first-degree kidnapping, they would have to hold the child for ransom. There is no ransom requirement with parental kidnapping.
For a parent to be guilty of second-degree kidnapping, they would have to knowingly seize and carry away the child without the child’s consent and without lawful justification. With parental kidnapping, there is no requirement that the child did not consent to being taken; in fact, in many custody cases, the child may wish to stay with the parent who is unlawfully taking them.11
Learn more about Colorado kidnapping laws.
References:
- Colorado Revised Statute 18-3-304. See also People v. Sorrendino (Colo. App. 2001) 37 P.3d 501 (restraining orders with “care and control” provisions issued under 14-4-102-108 count as custody orders). See also U.S. v. Al-Ahmad (D. Colo. 1998) 996 F. Supp. 1055 (“The legal custodian has a duty to care for a child, providing basic necessities of life. The legal custodian has such rights to the exclusion of the natural parent/s.”). See also Wood v. District Court (Colo. 1973) 508 P.2d 134 (“Where original custody award and subsequent habeas corpus proceeding are in same state, but in different courts, although habeas corpus court would not have jurisdiction to test wisdom of or to modify custody decree, nevertheless, it can and should make writ permanent to enforce decree and should order child returned to one lawfully entitled to custody.”).
- People v. Mossmann, (Colo. App. 2000) 17 P.3d 165.
- People v. Coyle, (Colo. 1982) 654 P.2d 815.
- People v. Beilke, (Colo. App. 2009) 232 P.3d 146.
- CRS 18-3-304.
- Colorado Rules of Civil Procedure Rule 107.
- See note 5. Note that these are affirmative defenses. This means that you admit to violating the law but that you should not be convicted because you were legally justified. People v. Mossmann (Colo. App. 2000) 17 P.3d 165 (“An affirmative defense to violation of custody is that the “offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare.” …However, the evidence in support of such an affirmative defense may be limited to defendant’s state of mind at or shortly before the time he took his daughter.”).
- People v. Moore, (Colo. 1977) 562 P.2d 749.
- The only state that has not adopted UCCJEA is Massachusetts.
- See People v. Moore, (Colo. 1977) 562 P.2d 749 (26-year-old man dated a 15-year-old girl from Colorado and convinced her to come back to California with him).
- CRS 18-3-301. CRS 18-3-302 (it is not necessary that the taking be done with force). People v. Tippett (Colo. 1987) 733 P.2d 1183. People v. Metcalf (Colo. App. 1996) 926 P.2d 133.
