Parental kidnapping, or custodial interference, is the crime of knowingly taking a child away from the person who has lawful custody. In most cases, it is a Class 5 felony in Colorado.
The line between parental kidnapping and a minor custody violation, though, is murky.
What is parental kidnapping?
CRS 18-3-304 defines parental kidnapping in Colorado. It prohibits taking or enticing a minor from the care of their legal guardian. To commit parental kidnapping, you have to know that you have no parental privilege or rights at the time.1
You can also commit parental kidnapping by violating a court order that grants someone else custody of a child.2
Taking reasonable steps to protect a child is a defense to parental kidnapping
CRS 18-3-304 specifically says that it is not parental kidnapping if you believe you are protecting the child. However, that belief has to be a reasonable one. You have to convince a jury that a reasonable person would believe they were acting to protect the child.3 This forces you to back up your belief with persuasive evidence.
What are examples of parental kidnapping?
There are some obvious instances that constitute parental kidnapping. These include:
- A father with only supervised visitation rights takes his daughter to another state and lives with her for nearly a year,4
- Parents secretly taking their children from foster homes after losing custody in a court case that had found them neglectful,5 and
- The day before a custody hearing, a father flies with his daughter to Australia with an intent to stay there.6
However, 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 your visitation rights for one week.
While these seem unlikely to amount to parental kidnapping, where the line is drawn is unclear.
Based on cases that refer to CRS 18-3-304, the following factors are important:
- How long the child is missing,
- If the child was brought out of state or out of the country,
- The apparent abductor expressed an intent to keep the child, and
- Whether the adult in custody knew where the child was.
Parents are not the only people who can commit parental kidnapping
Colorado's law does not require the actor to be the child's parent. While that is often the situation, it does not have to be.7 Non-parents and even people outside of the family can commit parental kidnapping.
What if the child is brought to a different state?
Colorado's laws concerning parental kidnapping apply even if the child is taken to another state.
There are certain federal laws that apply to these situations. One of them is the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. The UCCJEA is a uniform act that has been adopted in 49 states, including Colorado. The only state that has not adopted UCCJEA is Massachusetts.
The UCCJEA sets exclusive and continuing jurisdiction for child custody issues in the child's home state. Even if a child is taken in a parental kidnapping and they go to a different state, Colorado's law will still dictate what happens.
Penalties for parental kidnapping under CRS 18-3-304
In most cases, parental kidnapping is a Class 5 felony in Colorado. Convictions carry:
- 1 to 3 years in jail, and
- At least $1,000 in fines.
If you took the child out of the country, parental kidnapping becomes a Class 4 felony. These convictions carry:
- 2 to 6 years in jail, and
- At least $2,000 in fines.
C.R.S. § 18-3-304(1).
C.R.S. § 18-3-304(2).
C.R.S. § 18-3-304(3).
See People v. Moore, 562 P.2d 749 (Colo. 1977) (26-year-old man dated a 15-year-old girl from Colorado and convinced her to come back to California with him).