Icji 1241 child custody interference-misdemeanor instruction no




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ICJI 1241 CHILD CUSTODY INTERFERENCE—MISDEMEANOR
INSTRUCTION NO.
In order for the defendant [name] to be guilty of Child Custody Interference, the state must prove each of the following:

1. On or about [date]

2. the defendant [name] intentionally

3. and without lawful authority

4. [took] [enticed away] [kept] [withheld]

5. a child under the age of 18 years,

6. from [name of custodian] [who] [which] had the right to custody, and

7. [the (taking) (enticing away) (keeping) (withholding) of the child occurred in the state of Idaho] [or] [the (keeping) (withholding) occurred when (name of custodian) was a resident of the state of Idaho].


If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.
The "right to custody" includes custody, joint custody, visitation, or other parental rights, whether such rights arise from a temporary or permanent custody order or from the equal custodial rights of each parent in the absence of a custody order.

[It is not "without lawful authority" to [take] [entice away] [keep] [withhold] a child if [such action is taken to protect the child from imminent physical harm.]

[or]

[such action is taken by a parent fleeing from imminent physical harm to such parent.]



[or]

[such action is consented to by the lawful custodian of the child.]

[or]

[the child is returned within 24 hours after expiration of an authorized visitation privilege.]]



Comment

I.C. § 18–4506. The last bracketed language sets forth what is not "without lawful authority" (element 3 of the crime), the affirmative defenses stated in IC § 18–4506(2). The appropriate statement concerning such authority should be given only if there is evidence supporting the defense.


In order for the crime to have been committed "in the State of Idaho," it is only necessary that one of the essential elements of the crime was committed in this state. The duty to return the child to the custodial parent follows the custodial parent. Thus, if a child is kept or withheld from a custodial parent or other person having proper legal custody, and if that parent or other person is a resident present within the state of Idaho, the keeping or withholding and the deprivation of custodial rights are regarded as having occurred in the state of Idaho. This satisfies the requirement that the crime must have occurred "in the State of Idaho." State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).


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