COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

DONNA FOSTER-ZAHID 

 OPINION BY 

v. Record No. 1937-95-4 JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 12, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Judge 

 (William D. Pickett, on briefs), for 

appellant. Appellant submitting on briefs. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief) for appellee. 

 Donna Foster-Zahid (appellant) was convicted in a bench 

trial of custodial interference (felony parental abduction) in 

violation of Code § 18.2-49.1(A).1 On appeal, appellant contends 

that the trial court erred in: (1) exercising jurisdiction 

because the abduction was accomplished outside of Virginia, and 

(2) finding Fairfax, Virginia to be the appropriate venue. For 

the reasons that follow, we affirm the trial court. 

 

 1Code § 18.2-49.1(A) provides that "[a]ny person who knowingly, 

wrongfully and intentionally withholds a child from the child's 

custodial parent in a clear and significant violation of a court 

order respecting the custody or visitation of such child, provided 

such child is withheld outside of the Commonwealth, shall be 

guilty of a Class 6 felony." (Emphasis added). 
 2 

 I. BACKGROUND 

 The facts are uncontested. Mr. Zahid and appellant were 

married in December 1983. Their son, Raja Zahid Jr., was born 

December 1986. After they separated, custody of Raja Jr. was 

determined in an October 19, 1994 hearing in the Fairfax Juvenile 

and Domestic Relations District Court in which both parties were 

represented by counsel. In a November 9, 1994 order, the judge 

ordered joint legal and physical custody of Raja Jr. and 

specified as follows: 

 The child shall be released to his 

father's physical custody on Saturday, 

October 22, 1994 at 11:00 AM and shall 

continue to be in his father's physical 

custody except for periods of visitation with 

his mother, as herein outlined, until the 

second semester begins in the child's 

Wisconsin school. . . . 

 After this Fall 1994-1995 semester, Raja 

will live with his mother during the school 

term each year and his father during the 

summer school vacation . . . . 

* * * * * * * 

 The father shall take or send the child 

to visit the mother in Wisconsin December 2nd 

through 4th, 1994. The mother shall have the 

child with her and is to arrange 

transportation, etc. for a holiday visit from 

the day school is out in Virginia through 

December 29th at 10:00 PM, when she is to 

return Raja to the father in Virginia. 

 Mr. Zahid took his son to Wisconsin for appellant's fall 

visitation on December 2, 1994 and left two plane tickets with 

appellant so that she could return the child on December 4, 1994 
 3 

 

as required by the court order. Appellant failed to return the 

child to his father. She informed Mr. Zahid that she would not 

return Raja Jr. because he had an ear infection and she did not 

want him to travel by air. She later agreed to bring Raja Jr. 

back by train. Relying on this representation, Mr. Zahid 

purchased two train tickets for the return trip. Appellant again 

refused to relinquish the child. Appellant then agreed to 

deliver the child to Mr. Zahid if the transfer occurred at the 

Amtrak Station in Milwaukee, Wisconsin on December 9, 1994. Mr. 

Zahid travelled to Wisconsin, waited for Raja Jr. and appellant 

at the station, but they never appeared. 

 On December 14, 1994, a Wisconsin court enforced the 

Virginia decree and required appellant to "forthwith and without 

delay place the child Raja E. Zahid into the actual and physical 

custody and control of Raja M. Zahid."2

 Rather than comply, 

appellant absconded with the child to California on December 24, 

1994, and then to Colorado four days later. In March 1995, 

appellant was arrested in Colorado for the abduction of Raja Jr., 

and returned to Fairfax, Virginia for trial. 

 2Appellant admitted her awareness of the Virginia court order, 

but attempted to justify withholding Raja Jr. from Mr. Zahid. She 

alleged that Mr. Zahid slapped her face on December 2, 1994, and 

told her that she would never see her son again because he planned 

to take the child to his native country of Pakistan. 
 4 

 II. JURISDICTION 

 At the close of the Commonwealth's case, appellant moved to 

strike the evidence and argued inter alia that neither 

jurisdiction nor venue was properly laid in Fairfax, Virginia, 

because the place of the child's abduction was Wisconsin. The 

trial court denied the motion to strike and stated as follows: 

 The gravamen of [18.2-49.1] is not 

taking a child. I don't think the statute 

even uses the word taking a child or 

abduction. It says withholding a child. 

Withholding the child from the child's 

custodial parent. And the withholding is 

where the child's supposed to be and if the 

child is supposed to be here, this is where 

the offense occurs. 

* * * * * * * 

 [What makes 18.2-49.1 a felony] is that 

the child is withheld outside the 

Commonwealth. But the Commnwealth is where 

the child was supposed to be and that's the 

gravamen of the offense. Both jurisdiction 

and venue are here because this is where the 

parent lived. 

(Emphasis added). 

 At the close of all the evidence, the court denied the 

renewed motion to strike by appellant's counsel and additionally 

found as follows: 

 I didn't hear any reason why [appellant] went 

to California or Colorado except to withhold 

the child . . . in violation of the [c]ourt 

[o]rder. She violated not one, but two 

[o]rders. There was an [o]rder in Virginia 

and there was one in Wisconsin. The 

Wisconsin [o]rder was issued after the events 

that she says occurred, that she says gave 

her reason to fear that her husband would 

take the child to Pakistan had occurred. So, 
 5 

whatever those issues were could and should 

have been raised in the Wisconsin hearing. 

 [S]he got an [o]rder from Wisconsin 

saying take the child back -- give the child 

back, and she violated that [o]rder as well 

as the Virginia [o]rder. She knew of the two 

[o]rders. She intentionally withheld the 

child without legal excuse. So, it was 

wrongful. 

 The violation of the [c]ourt [o]rders 

was clear and significant. This is the very 

type of behavior that the statute is designed 

to prevent. There may be a whole lot of 

social policy reasons why this ought not to 

be a felony, but I don't do social policy; I 

do law. And she violated the law and I find 

her guilty. 

 Appellant argues that the trial court lacked jurisdiction to 

try her for a violation of Code § 18.2-49.1(A) because her act of 

withholding the child occurred outside the confines of the 

Commonwealth. Appellant contends that the locus of where the 

child is "with[held] from the child's custodial parent," rather 

than where the custody order was entered, controls jurisdiction. 

 The clear language of the statute contradicts this view. 

 (A) Parental Abduction / Custodial Interference Statute

 "A primary rule of statutory construction is that courts 

must look first to the language of the statute. If a statute is 

clear and unambiguous, a court will give the statute its plain 

meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245 

Va. 80, 85, 425 S.E.2d 800, 802 (1993). The General Assembly 

specified that Code § 18.2-49.1(A) applies to any person who 

withholds a child outside of Virginia from the child's custodial 
 6 

parent in violation of a Virginia court order, if the custodial 

parent resides in Virginia. The statutory language demonstrates 

the General Assembly's intent to make criminal an act occurring 

outside of Virginia that causes harm within. 

 Subsections A and B of Code § 18.2-49.1, although similar in 

language, are different in effect. The legislature outlined two 

degrees of custodial interference. The degree of offense is 

determined by the location of the detention or abduction. If it 

occurs within the territorial boundaries of the Commonwealth, 

under subsection B, it is a misdemeanor. The act that elevates 

the offense from a misdemeanor to a felony occurs only when the 

child is "withheld" from a custodial parent "outside of the 

Commonwealth." Code § 18.2-49.1(A) (emphasis added). The 

gravamen of the offense is the withholding of the child from the 

custodial parent outside the Commonwealth. The clear intent of 

the statute is to punish more severely those who withhold a child 

from its rightful custodian when the detention is accomplished 

outside of Virginia, thereby further restricting the custodial 

parent's ability to retrieve the child. The underlying policy 

for this statute, like that of the Parental Kidnapping Prevention 

Act, 28 U.S.C.A. § 1738A, is to deter, if not prevent, child 

snatching. 

 While we have not previously addressed this precise issue, 

other jurisdictions with similar statutes hold that the custodial 

parent's residence and the place of issuance of the custody 
 7 

 

decree provide a sufficient jurisdictional nexus regardless of 

where the actual abduction or detention occurs.3

 In Vermont, the child custody interference statute provides 

 3See N.J. Stat. Ann. § 2C:13-4 (West 1995) (a person, 

"including a parent . . . is guilty of interference with custody 

if . . . [a]fter the issuance of a temporary or final order 

specifying custody, visitation or joint custody rights, takes, 

detains, entices or conceals a minor child from the other parent 

in violation of the custody or visitation order"); Cal. Penal Code 

§ 784.5 (West 1995) (providing jurisdiction to prosecute violator 

in jurisdictional territory where (1) victim resides; (2) minor 

child was taken, detained, or concealed; or (3) minor child is 

found); N.D. Cent. Code § 14-14-22.1 (1995) (removal or detention 

of "child under the age of eighteen years outside North Dakota 

with the intent to deny another person's rights under an existing 

custody decree shall be guilty of a class C felony"); see also

R.I. Gen. Laws § 11-26-1.2 (1994); Wyo. Stat. § 6-2-204 (1989); 

S.D. Codified Laws Ann. § 22-19-9 (1985); Nev. Rev. Stat. § 

200.359 (1995); La. Rev. Stat. Ann. § 45.1 (West 1986); Ill. Ann. 

Stat. ch. 720, para. 5/10-5 (1989); Idaho Code § 18-4506 (1987); 

Ga. Code Ann. § 16-5-45 (Harrison 1987); Fla. Stat. Ann. § 787.03 

(West 1996); Colo. Rev. Stat. Ann. § 18-3-304 (West 1990); Ariz. 

Rev. Stat. Ann. § 13-1302 (1994); and Ind. Code 

§ 35-42-3 (1990). 
 8 

in pertinent part, "[a] person commits custodial interference by 

taking, enticing or keeping a child from the child's lawful 

custodian." Vt. Stat. Ann. tit. 13, § 2451(a) (1995) (emphasis 

added). The Supreme Court of Vermont, in a factually similar 

case, construed the statute to "explicitly contemplate[] 

application to a person who has kept a child outside of Vermont." 

 The court specifically rejected defendant's argument that the 

statute "refers only to those who 'snatch' a child in Vermont and 

then leave the state to avoid detection," and found that "[t]he 

only plausible interpretation of [the statutory] language is that 

the statute is intended to apply to a person . . . who keeps a 

child outside Vermont when the child's lawful custodian is a 

resident of Vermont." State v. Doyden, 676 A.2d 345, 346 (Vt. 

1996) (emphasis added). The court found further grounds for 

jurisdiction because the result of defendant's conduct (i.e., the 

custodial parent losing custody) was "not incidental to the 

offense charged, but [was] in fact an element of the offense as 

defined by statute." Id. at 348. 

 In construing the Alaska statute addressing custodial 

interference, the Court of Appeals of Alaska stated, "[t]he crime 

of custodial interference was designed to protect any custodian 

from deprivation of his or her custody rights." Strother v. 

State, 891 P.2d 214, 220 (Alaska Ct. App. 1995). "Alaska's 

custodial interference statutes embody the rule that, when a 

child is entrusted to joint custodians, neither custodian may 
 9 

take exclusive physical custody of the child in a manner that 

defeats the rights of the other joint custodian." Id. at 223. 

The Alaska statute uses the phrase "takes, entices, or keeps [a] 

child . . . from a lawful custodian" to describe the prohibited 

act. The court further held that "if a parent takes custody of 

the child and exercises that custody in a manner that defeats the 

custody rights of the other parent, unlawfully 'keeping' the 

child from the other parent, then the parent's conduct 

constitutes the actus reus of custodial interference."4

 Id. at 

 

 4See also State v. Kane, 625 A.2d 1361 (R.I. 1993) (Rhode 

Island maintained jurisdiction over defendant who intentionally 

retained child outside of state in violation of state custody 

decree, stating, "the crime of child snatching can never occur 

absent a valid custody order rendered within this state. Thus 

[the statute] applies to acts that necessarily produce a 

detrimental effect within Rhode Island."); State v. Doyle, 828 

P.2d 1316 (Idaho 1992) (where defendant, mother, or child were not 

present in state when the act of withholding occurred, Idaho will 

have jurisdiction over a crime if any essential element of the 

crime, including the result, occurs within the state -- where the 

"keeping or withholding and the deprivation of the custodial 

rights, occurred in Idaho"); Trindle v. State, 602 A.2d 1232 (Md. 

1992) (where defendant acquired lawful possession of child and 

detained child outside Maryland, the intended result of 
 

 10 

defendant's conduct, i.e., depriving father of custody, formed an 

essential ingredient of the offense, and had its effect in state 

of father's residence, although the acts which produced that 

result took place out of state); Rios v. State, 733 P.2d 242 (Wyo. 

1987) ("the only place where [defendant] could fail or refuse to 

return the child to the custody of the person entitled to custody 

is Wyoming," where the adverse result occurred); Wheat v. State, 

734 P.2d 1007 (Alaska Ct. App. 1987) (under custodial interference 

statute, the commission of a crime is consummated in Alaska when 

crime requires a result as a necessary element, and when result 

occurs inside the state; the prohibited result is the gravamen of 

the offense, rather than defendant's proscribed conduct per se; 

court also noted alternative basis for jurisdiction in defendant's 

omission to perform a legal duty with respect to relationship to 

another); People v. Harvey, 435 N.W.2d 456 (Mich. Ct. App. 1989) 

(defendant's Colorado-based conduct subject to Michigan court's 

jurisdiction where defendant had legal duty to return daughter to 

mother, and statute made criminal his failure to perform this 

duty. "The detrimental effects of defendant's intentional 

retention of [the child] in violation of the Michigan court's 

custody order occurred within the state, since it was the 

authority of a Michigan resident that was infringed upon."); 

Roberts v. State, 619 S.W.2d 161 (Tx. Crim. App. 1981) (where 

defendant grandmother knowingly and intentionally retained child 
 11 

224. We find this analysis equally applicable to the case at 

bar. 

(B) Extraterritorial Jurisdiction 

 Code § 19.2-239 defines the jurisdiction of the circuit 

courts of Virginia in criminal cases and provides that "[t]he 

circuit courts, except where otherwise provided, shall have 

exclusive original jurisdiction for the trial of all 

presentments, indictments and informations for offenses committed 

within their respective circuits." Generally, charges may be 

tried only in the circuit courts having territorial jurisdiction 

over the locations in which the crimes occurred and in which 

venue is laid." Curtis v. Commonwealth, 13 Va. App. 622, 629, 

414 S.E.2d 421, 425 (1992). "[The crime] must take place within 

this State to give our courts jurisdiction. . . . Every crime to 

be punished in Virginia must be committed in Virginia." Farewell 

 

out of state, knew that retention violated court order, and where 

statutory provisions incorporated territorial theory stated in 

Strassheim v. Daily, Texas had jurisdiction); People v. Caruso, 

504 N.E.2d 1339 (Ill. App. Ct. 1987) (defendant's act of harboring 

children out of state and failing to return them to custodial 

parent in violation of Illinois court order subjected defendant to 

prosecution in Illinois pursuant to Illinois criminal jurisdiction 

statute, where the offense charged was based on "an omission to 

perform a duty imposed by the law of this State"). 
 12 

v. Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937). 

 While the traditional view of jurisdiction requires a 

completed intrastate act, the Virginia Supreme Court has 

addressed the question of jurisdiction to prosecute an offense 

not fully executed in Virginia but resulting in immediate harm 

within the Commonwealth. "[A]ctual physical presence in a state 

is not necessary to make an individual amenable to its criminal 

laws if the crime is the 'immediate result' of the accused's act; 

under such circumstances, the accused may be tried in the state's 

courts even though actually absent at the time the act was 

committed." Moreno v. Baskerville, 249 Va. 16, 19, 452 S.E.2d 

653, 655 (1995) (emphasis added) (quoting Travelers Health Ass'n 

v. Commonwealth, 188 Va. 877, 891, 51 S.E.2d 263, 268 (1949)). 

"'It has long been a commonplace of criminal liability that a 

person may be charged in the place where evil results, though he 

is beyond the jurisdiction when he starts the train of events of 

which the evil is the fruit.'" Gregory v. Commonwealth, 5 Va. 

App. 89, 94, 360 S.E.2d 858, 861 (1987) (emphasis added) (quoting 

Travelers Health, 188 Va. at 892, 51 S.E.2d at 269) (Virginia had 

jurisdiction because the fraudulent disposal of a truck outside 

Virginia was contemplated by the statute, where the harm the 

statute intended to prevent occurs in Virginia, regardless of 

where the fraudulent intent is formed), aff'd, 237 Va. 354, 377 

S.E.2d 405 (1989). "Where harm is caused in Virginia by criminal 

acts partially committed within this Commonwealth, such acts can 
 13 

be prosecuted here." Id. Jurisdiction may exist where the 

immediate harm occurs, even if the criminal act does not 

physically occur there. 

 Additionally, in defining extraterritorial jurisdiction, the 

United States Supreme Court held that "[a]cts done outside a 

jurisdiction, but intended to produce and producing detrimental 

effects within it, justify a state in punishing the cause of the 

harm as if [defendant] had been present at the effect, if the 

state should succeed in getting him within its power." 

Strassheim v. Daily, 221 U.S. 280, 285 (1911). See also United 

States v. Steinberg, 62 F.2d 77, 78 (2d Cir. 1932) (no 

constitutional violation to charge accused in the United States, 

where he posted fraudulent letter in Canada). 

 In the instant case, appellant lawfully obtained custody of 

the child for a limited visitation pursuant to the November 9, 

1994 Virginia court order. Appellant willfully violated the 

valid court order requiring her "to return Raja to the father in 

Virginia" by originally withholding the child in Wisconsin and 

later absconding with him to California and Colorado. Even 

though appellant's original detention and later removal of the 

child occurred outside the Commonwealth, the immediate harm of 

depriving Mr. Zahid of custody of his son occurred within 

Virginia. Thus, Virginia properly exercised jurisdiction over 

appellant pursuant to Code §§ 18.2-49.1(A) and 19.2-239. 
 14 

III. VENUE

 Lastly, appellant argues that the trial court also erred in 

finding that venue was properly laid in Fairfax County, because 

Code § 19.2-244 does not fix venue at a place other than where 

the crime occurred, and no crime occurred in Virginia. 

 "Except as otherwise provided by law, the prosecution of a 

criminal case shall be had in the county or city in which the 

offense was committed." Code § 19.2-244. Venue is reviewed to 

determine "whether the evidence, when viewed in the light most 

favorable to the Commonwealth, is sufficient to support the 

[trial court's] venue findings." Cheng v. Commonwealth, 240 Va. 

26, 36, 393 S.E.2d 599, 604 (1990). 

 "At common law the proper venue of a crime was the county 

where it was committed and this rule has been generally 

recognized by courts or established by Constitutions. But, in 

the absence of a constitutional limitation, it is generally held 

that the Legislature has power to fix the venue of criminal 

prosecutions in a county or district other than that in which the 

crime was committed." Howell v. Commonwealth, 187 Va. 34, 40-41, 

46 S.E.2d 37, 40 (1948) (citation omitted). To prove venue, the 

Commonwealth must "produce evidence sufficient to give rise to a 

'strong presumption' that the offense was committed within the 

jurisdiction of the court, and this may be accomplished by either 

direct or circumstantial evidence." Cheng, 240 Va. at 36, 393 

S.E.2d at 604 (quoting Pollard v. Commonwealth, 220 Va. 723, 725, 
 15 

 

261 S.E.2d 328, 330 (1980)). 

 Under Code § 18.2-49.1(A), the General Assembly clearly 

provided that venue exists where the crime of custodial 

interference occurred, i.e., where the harm resulted as a direct 

and immediate consequence of the violation of the court order.5

 

In the instant case, the evidence established that Mr. Zahid was 

a resident of Fairfax County at the time of the abduction and 

that the child was to be returned to Fairfax County pursuant to a 

valid and enforceable Fairfax custody order. The harm 

contemplated by Code § 18.2-49.1(A) was clearly established as 

occurring in this locus. Thus, the trial court properly found 

venue in Fairfax, Virginia. 

 5Additionally, in parental abduction or custodial interference 

cases, other states provide venue where the custodial parent 

resides. See, e.g., State v. Evans, 442 S.E.2d 287 (Ga. Ct. App. 

1994) (where defendant removed child from state in lawful exercise 

of visitation right, and upon expiration of the period of lawful 

visitation intentionally retained the minor in another state for 

the purpose of keeping the minor away from the individual having 

lawful custody of minor, the victim's (i.e., the custodial 

parent's) domicile should be the venue of any criminal 

prosecution); and State v. Aussie, 845 P.2d 158 (Ariz. Ct. App. 

1993) (venue is proper in the county where the custodial parent 

resided at the time of the custodial interference). 
 16 

 For the foregoing reasons, we affirm the decision of the 

trial court. 

 Affirmed.