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
(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
(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;
(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.
The Prosecuting Attorney is developing a policy which is
intended to address the numerous issues raised in attempting to enforce Idaho's
child custody interference statute and to limit the unnecessary use of the
scarce resources of the prosecutor's office by parents or guardians who are
attempting to use law enforcement and the prosecutor's office as a substitute
for taking action through the civil court process or for the sole purpose of
attempting to harass or gain leverage against the other parent or guardian. The
established policy is the following:
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
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.
The following guidelines will be followed by the Bannock County Prosecutor's
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
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
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.