§ 13A-6-45. Interference with custody.

Statute text

(a) A person commits the crime of interference with custody if he knowingly takes or entices:

(1) Any child under the age of 18 from the lawful custody of its parent, guardian or other lawful custodian, or

(2) Any committed person from the lawful custody of its parent, guardian or other lawful custodian. "Committed person" means, in addition to anyone committed under judicial warrant, any neglected, dependent or delinquent child, mentally defective or insane person or any other incompetent person entrusted to another's custody by authority of law.

(b) A person does not commit a crime under this section if the actor's sole purpose is to assume lawful control of the child.

The burden of injecting the issue is on the defendant, but this does not shift the burden of proof.

(c) Interference with custody is a Class C felony.

History

History: Acts 1977, No. 77-607; Acts 1983, No. 83-571.

Annotations

Editor's note. - Former similar law: Code 1975, § 13-1-22.

Cross references. - Juvenile proceedings, disregarding court order or interference with custody, § 12-15-14.

§ 13A-6-45 Commentary

Several Alabama statutes dealt with child custody, taking girl under 14 for prostitution or marriage (former § 13-1-21), enticing female for immoral purposes (prostitution or forcible marriage) (former § 13-7-2), taking child with intent to detain or conceal it from parents (former § 13-1-22).

Section 13A-6-45 is adapted from Michigan Revised Criminal Code § 2215; New York Revised Penal Law § 135.45; and New Jersey Penal Code § 2C:13-4. Here the main interest protected is not freedom from physical danger, since that is covered elsewhere, but the protection of parental custody against unlawful interruption. The section renders inapplicable the kidnapping sections to nonserious cases that involve an unlawful taking of a child under 18 years of age from his natural parent or guardian or a committed person from the custodian or institution to whom he has been entrusted, e.g., inmate from Boys Industrial School, Alabama Hospital for Insane, Alabama Department of Pensions and Security, etc. Any resulting harm or unlawful restraint is covered by assaults and related offenses, §§ 13A-6-20 through 13A-6-25, unlawful imprisonment, §§ 13A-6-41 and 13A-6-42 or sexual offenses, chapter 6, article 4. Of course, an abduction would come under one of the kidnapping offenses, §§ 13A-6-43 and 13A-6-44. There may be some overlap with the provisions of chapter 10, article 2, on escapes, but this does not seem serious. Cf. § 13A-10-45, giving criminal assistance to escapee.

The age of 18 is used in this section as it is the growing normal limit of parental authority in custody matters, since this is the age at which most youths become independent or seek self-support and enter higher education, the military service, marriage, etc.

Special provision is made to prevent abuse in certain custody battles between estranged parents. Under § 13A-6-45(b), the offense of custodial interference cannot be committed if the actor is a "relative," as defined in § 13A-6-40(3), and the actor's sole purpose was to assume lawful control or custody. This is the counter part to § 13A-6-42(b), a similar exception based on custody wrangles.

Cross References:

Assaults and related offenses, chapter 6, article 2.

Giving criminal assistance to escapee, § 13A-10-45.

Kidnapping, §§ 13A-6-43 and 13A-6-44.

Sexual offenses, chapter 6, article 4.

Unlawful imprisonment, §§ 13A-6-41 and 13A-6-42.

Unauthorizedly bringing child into state for adoption, §§ 38-7-15 and 38-7-16.

CASE NOTES

Child

Evidence - Admissible

Intent, knowledge

Cited

Child.

-- The word "child" is a person under the age of majority. Wade v. State, 24 Ala. App. 176, 132 So. 71 (1931).

Evidence - Admissible.

-- In action for decoying a child, it was relevant and proper to show that witness was child's uncle, that he had had charge of her and she was three years old, and that he had supported and educated her; these facts tended to prove witnesses' right to the custody of the girl, as against the interference of third persons. Wade v. State, 24 Ala. App. 176, 132 So. 71 (1931).

-- Nude photographs of a child taken by the defendant tended to evidence the fact that the defendant's sole purpose in picking her up from school was not to assume "lawful control" of the child. Kennedy v. State 640 So. 2d 22 (Ala. Crim. App. 1993).

Intent, knowledge.

-- Based on the specific intent requirements in the prior Alabama statutes on the subject, and on the specific intent requirements in the statutes of other jurisdictions upon which this section was patterned, it is clear that the legislature intended the offense of interference with custody to be a crime requiring specific intent. Kennedy v. State 640 So. 2d 22 (Ala. Crim. App. 1993).

-- This section requires proof of the accused's specific intent to assume unlawful control of the child. Kennedy v. State 640 So. 2d 22 (Ala. Crim. App. 1993).

Cited in Ex parte Woodard 631 So. 2d 1065 (Ala. Crim. App. 1993).

Back to Alabama's Joint Custody Act

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