Interference with Custody
Misdemeanor interference with custody
• A person who with the intent to deprive another person of custody or parenting time rights:
(1) knowingly or intentionally takes;
(2) knowingly or intentionally detains; or
(3) knowingly or intentionally conceals;
a person who is less than eighteen (18) years of age commits interference with custody, a Class C misdemeanor.
• However, the offense is a Class B misdemeanor if the taking, concealment, or detention is in violation of a court order.
Felony interference with custody
• A person who, with the intent to deprive another person of child custody rights, knowingly or intentionally:
(1) removes another person who is less than eighteen (18) years of age to a place outside Indiana when the removal violates a child custody order of a court; or
(2) violates a child custody order of a court by failing to return a person who is less than eighteen (18) years of age to Indiana; commits interference with custody, a Level 6 felony.
• [T]he offense is a Level 5 felony if the other person is less than fourteen (14) years of age and is not the person's child.
• [T]he offense is . . . a Level 4 felony if the offense is committed while armed with a deadly weapon or results in serious bodily injury to another person.
Interpretation of IC 35-42-3-4(a)(2)
• [IC 35-42-3-4(a)(2)] clearly states two requirements that must be met before the State may charge a person with interference with custody. First, a person must either knowingly or intentionally remove another person, who is less than 18 years old, to a place outside of Indiana. Second, after the person, who is less than 18 years old, has been removed to a place outside of Indiana, a person must then either knowingly or intentionally, in violation of a court order, fail to return that person, who is less than 18 years old, to Indiana.
Melo v. State, 744 N.E.2d 1035, 1037(Ind. Ct. App. 2001)
Definition and interpretation of “removes”
• [T]he word “remove” means “to change the location, position, station, or residence of.”
Melo v. State, 744 N.E.2d 1035, 1037(Ind. Ct. App. 2001)(quoting Merriam Webster's Collegiate Dictionary 990 (10th ed.1994))
• [The defendant] did not knowingly change the location, position, station, or residence of S.I.Z. and S.D.Z. on or between the dates of June 9, 1999 and August 12, 1999. The children had been in Florida since July 1998.
Melo v. State, 744 N.E.2d 1035, 1037(Ind. Ct. App. 2001)
Duration of the offense
• The offenses described [in IC 35-42-3-4] continue as long as the child is concealed or detained or both.
Imposition of costs
• If a person is convicted of an offense under [IC 35-42-3-4], a court may impose against the defendant reasonable costs incurred by a parent or guardian of the child because of the taking, detention, or concealment of the child.
• [The defendant] claims that the award of restitution is contrary to law and is unsupported by the evidence, and that authorization for costs does not permit an award of attorney fees. . . . Our supreme court has determined that restitution may be paid to those shown to have suffered injury, harm, or loss as a direct and immediate result of the criminal acts of a defendant. . . . While the general rule is that each party to the litigation must pay his own counsel fees absent a statute or agreement to the contrary, that rule is inapplicable here. Baker was a victim—not a party in this case—involving the State and [the defendant]. Thus, as discussed above, the award of restitution was within the trial court's discretion. In accordance with IC 35-42-3-4, we must conclude that attorney fees may be awarded as “reasonable costs incurred by a parent . . . of the child because of the taking, detention, or concealment of the child . . . .”
Vanness v. State, 605 N.E.2d 777, 782-84 (Ind. Ct. App. 1992), trans. denied(quoting IC 35-42-3-4(e))(citations omitted)
Cf. Reinbold v. State, 555 N.E.2d 463, 470 (Ind. 1990)(overruled on other grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995))(“[R]estitution has properly been ordered payable to those shown to have suffered injury, harm or loss as a direct and immediate result of the criminal acts of a defendant.”)
A mitigating circumstance
• With respect to a violation of [IC 35-42-3-4], a court may consider as a mitigating circumstance the accused person's return of the other person in accordance with the child custody order or parenting time order within seven (7) days after the removal.
Defenses
• It is a defense to a prosecution under this section that the accused person:
(1) was threatened; or
(2) reasonably believed the child was threatened;
which resulted in the child not being timely returned to the other parent resulting in a violation of a child custody order.