Bannock County Prosecuting Attorney

18-4506. Child Custody Interference Defined --Defenses -- Punishment.

1. A person commits child custody interference if the person, whether a parent or other, or agent of that person, intentionally and without lawful authority:
(a) Takes, entices away, keeps or withholds any minor child from a parent or another person or institution having custody, joint custody, visitation or other parental rights, whether such rights arise from temporary or permanent custody order, or from the equal custodial rights of each parent in the absence of a custody order; or
(b) Takes, entices away, keeps or withholds a minor child from a parent after commencement of an action relating to child visitation or custody but prior to the issuance of an order determining custody or visitation rights.
2. It shall be an affirmative defense to a violation of the provisions of subsection 1. of this section that:
(a) The action is taken to protect the child from imminent physical harm;
(b) The action is taken by a parent fleeing from imminent physical harm to himself;
(c) The action is consented to by the lawful custodian of the child; or
(d) The child is returned within twenty-four (24) hours after expiration of an authorized visitation privilege.
3. A violation of the provisions of subsection 1. of this section shall be a felony, unless the defendant did not take the child outside the state, and the child was voluntarily returned unharmed prior to the defendant's arrest in which case the violation shall be reduced to a misdemeanor.
4. Any reasonable expenses incurred by a lawful custodian in locating or attempting to locate a child taken in violation of the provisions of subsection 1. of this section may be assessed against the defendant at the court's discretion in accordance with chapter 53, title 19, Idaho Code.

I. Policy Considerations

There is a steady increase of people turning to law enforcement agencies and the County Prosecuting Attorney's Office to resolve their child custody disputes. This is presenting an increased and significant burden on these agencies. The vast majority of these complaints are not capable of being resolved by law enforcement or the Prosecutor's Office. This document is intended to provide guidance to citizens, investigating officers, and the Prosecutor's Office staff on the position of the Bannock County Prosecuting Attorney's Office in regards to the prosecution of child custody interference matters.

Idaho Code 18-4506 provides a criminal punishment for interfering with child custody rights. Most complaining parties are not aware of the limited scope of the statute or do not appreciate the practical difficulties in proving a violation of the statute beyond a reasonable doubt.

The child custody interference statute is intended to address long-term interference with child custody rights. It was not intended to remedy late return of children from visitation or custody, unless that deprivation was substantial. Accordingly, interference with custody rights does not rise to the level of a prosecutable offense unless it occurs for a period exceeding twenty four (24) hours.

The child custody interference statute is not intended to provide a “quick fix” for people to resolve their custody disputes. It is also not intended to be a substitute for resolving disputes through civil proceedings. Parties must be encouraged to provide a long-term solution to child custody disputes by resorting to the civil court system, not the criminal justice system.

An extremely high percentage of the cases presented to law enforcement and the Prosecutor's Office are not capable of being prosecuted successfully because of such things as the lack of clearly defined custodial rights of each parent, factual disputes over what really occurred, incidents of miscommunication, and circumstances beyond a party's control which lead to failure to return the child on time. Cases will not be prosecuted unless the violation can be proved beyond a reasonable doubt.

Prosecutor are not obligated to prosecute every offense that may be brought to their attention. Many considerations, beyond the desires of the complaining party, affect the decision to prosecute or not to prosecute. The role of the Prosecutor's Office includes encouraging people to abide by the law and to educate people regarding their legal responsibilities. There are circumstances where this can be done using means other than criminal prosecution. Criminal prosecutions should be limited to those circumstances where there is a need to seek criminal sanctions in order to bring about law abiding behavior or to punish a clear contempt for the order of a court.

In response to the increase in the number of cases being presented of law enforcement and the Prosecutor's Office, the following policies are being implemented for the handling of child custody interference cases.

II. Policies

The following guidelines will be followed by the Bannock County Prosecutor's Office:

1. The County Prosecuting Attorney's Office will not prosecute charges unless there is:

a. a written court order; or

b. a stipulation signed by both parties and filed with the court; or

c. both parties have agreed in open court and on the record to a specific custody arrangement

A court order can be in a divorce action or paternity action. A domestic violence order, restraining order, or no-contact order will also qualify as long as it has been served on the accused party.

The complaining party must present a copy of the document, taped copy of the hearing, or a certified transcript of the hearing. Charges should not be filed unless the document, tape or transcript has been presented to the investigating officer and accompanies the police report. Experience has shown that the complaining party's verbal claims about the content of the order or stipulation are very frequently incorrect, exaggerated, or a matter of their own interpretation of an ambiguous order.

2. The County Prosecuting Attorney's Office will not prosecute a parent based on a representation that the parties have an oral agreement, that the parties have reached an agreement through their attorneys, or based on past practices of the parties. These types of proof are, almost without exception, useless when trying to prove a case beyond a reasonable doubt. The parties inevitably debate what the actual agreement or practice is or have different interpretations of the agreement.

3. The County Prosecuting Attorney's Office will not prosecute a parent if there are ambiguities or inconsistencies in the court order or stipulation. The Prosecutor's Office cannot prove a case beyond a reasonable doubt if there is room to debate what the order or stipulation means.

4. The County Prosecuting Attorney's Office will not prosecute child custody interference cases unless one of                 the following conditions exists:

a. The complaining party has previously taken action in civil court to have the accused party held in contempt for violating the court's custody order. This can be with respect to the most recent incident or a prior incident. It is not required that the complaining party was ultimately successful in their attempt to have the accused party held in contempt; or

b. The complaining party has proof that immediately prior to the violation or during the course of the violation, the accused party was notified of the exact language of the custody order or filed stipulation and, after having been so informed, refused to abide by the terms of the custody order or stipulation; or

c. The accused party has previously been charged or convicted of violating the custody provisions of the court order.

5. Consistent with the provisions of Idaho Code 18-4506, the County Prosecuting Attorney will not prosecute cases in which:

a. The action was taken to protect the child from imminent physical harm; or

b. The action was taken by a parent fleeing from imminent physical harm to himself/herself; or

c. The action is consented to by the lawful custodian of the child; or

d. The child is returned within twenty-four (24) hours after expiration of an authorized visitation privilege.

6. Compliance with all of the conditions set forth above does not guarantee that the case will be prosecuted. These guidelines are intended to be the minimum guidelines that must be met in order for a case to be considered for prosecution.

7. The Bannock County Prosecuting Attorney will review cases with officers, if the officer has details regarding the circumstances surrounding the event that they believe should lead to the prosecution of the case.

8. Officers are encouraged not to command a parent to surrender a child to the other parent or forcibly remove a child from a parent to be placed in the custody of the other. If the officer has grounds to believe that there is a threat to the welfare of the child if no action is taken the officer should, if the situation allows, contact the Prosecutor's Office or on-call prosecutor prior to taking any action.

9. The Prosecutor's Office requests that officers refrain from telling complaining parties that they should contact the Prosecutor's Office and have a prosecutor review their case. The Prosecutor's Office relies upon investigating officers to gather the facts and present those facts to the Prosecutor's Office. When faced with individuals who are displeased with the officer's actions, which actions are based on the above policies, those individuals should be told to contact the Prosecutor's Office to obtain a copy of this policy, not to argue their case.

This is the policy of the Bannock County Prosecuting Attorney's Office. The city prosecuting attorney(s) may have a different policy regarding these matters. If a case falls within the jurisdiction of a city, the city prosecutor should be contacted.