GA Code § 16-5-45 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 5 - Crimes Against the Person|Article 3 - Kidnapping, False Imprisonment, and Related Offenses|§ 16-5-45. Interference With Custody

  As used in this Code section, the term:   "Child" means any individual who is under the age of 17 years or any individual who is under the age of 18 years who is alleged to be a dependent child or a child in need of services as such terms are defined in Code Section 15-11-2.   "Committed person" means any child or other person whose custody is entrusted to another individual by authority of law.   "Lawful custody" means that custody inherent in the natural parents, that custody awarded by proper authority as provided in Code Section 15-11-133, or that custody awarded to a parent, guardian, or other person by a court of competent jurisdiction.   "Service provider" means an entity that is registered with the Department of Human Services pursuant to Article 7 of Chapter 5 of Title 49 or a child welfare agency as defined in Code Section 49-5-12 or an agent or employee acting on behalf of such entity or child welfare agency.       A person commits the offense of interference with custody when without lawful authority to do so, the person:   Knowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person;   Knowingly harbors any child or committed person who has absconded; provided, however, that this subparagraph shall not apply to a service provider that notifies the child's parent, guardian, or legal custodian of the child's location and general state of well being as soon as possible but not later than 72 hours after the child's acceptance of services; provided, further, that such notification shall not be required if:   The service provider has reasonable cause to believe that the minor has been abused or neglected and makes a child abuse report pursuant to Code Section 19-7-5;   The child will not disclose the name of the child's parent, guardian, or legal custodian, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child's acceptance of services; or   The child's parent, guardian, or legal custodian cannot be reached, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child's acceptance of services; or     Intentionally and willfully retains possession within this state of the child or committed person upon the expiration of a lawful period of visitation with the child or committed person.     A person convicted of the offense of interference with custody shall be punished as follows:   Upon conviction of the first offense, the defendant shall be guilty of a misdemeanor and shall be fined not less than $200.00 nor more than $500.00 or shall be imprisoned for not less than one month nor more than five months, or both fined and imprisoned;   Upon conviction of the second offense, the defendant shall be guilty of a misdemeanor and shall be fined not less than $400.00 nor more than $1,000.00 or shall be imprisoned for not less than three months nor more than 12 months, or both fined and imprisoned; and   Upon the conviction of the third or subsequent offense, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.         A person commits the offense of interstate interference with custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor or committed person away from the individual who has lawful custody of such minor or committed person and in so doing brings such minor or committed person into this state or removes such minor or committed person from this state.   A person also commits the offense of interstate interference with custody when the person removes a minor or committed person from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation.   A person convicted of the offense of interstate interference with custody shall be guilty of a felony and shall be imprisoned for not less than one year nor more than five years.      (Code 1933, § 26-1312, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1978, p. 1420, § 1; Ga. L. 1982, p. 970, § 2; Ga. L. 1986, p. 1325, § 1; Ga. L. 1987, p. 561, § 1; Ga. L. 1999, p. 81, § 16; Ga. L. 2000, p. 20, § 5; Ga. L. 2011, p. 470, § 2/SB 94; Ga. L. 2013, p. 294, § 4-7/HB 242.)   Cross references.   - Proceedings for determination of child custody, T. 19, C. 9.    Immunity of broadcasters from liability for Levi's Call: Georgia's Amber Alert Program, § 51-1-50.   Editor's notes.   - Ga. L. 2011, p. 470, § 1/SB 94, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Runaway Youth Safety Act.'".   Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."   Law reviews.   - For article, "Child Custody - Jurisdiction and Procedure," see 35 Emory L.J. 291 (1986).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Penal Code 1910, § 110 and former Code 1933, § 26-1602, as it read prior to revision of the title by Ga. L. 1968, p. 1249, and former Code Section 16-5-40(b), are included in the annotations for this Code section.   Defendant cannot be in violation unless terms of custody order are clear.    - Defendant cannot be in violation of O.C.G.A. § 16-5-45 unless the terms of the custody order are so clear that the parties have exact notice of the line which may not be transgressed. Brassell v. State, 259 Ga. 590, 385 S.E.2d 665 (1989).    Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, where the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991).   Interference with custody is lesser included offense of kidnapping in some cases.    - Term "committed person" included a dependent child under age 16, and in some cases interference with custody becomes a lesser included offense of kidnapping under former Code 1933, § 26-1311(b). All the same facts would be proven if the child taken was under age 16. The essential difference in the two crimes laid in the degree of culpability required to establish the commission of each crime. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975) (decided prior to 1982 amendment of § 16-5-40 and this section).   Venue.    - Evidence was sufficient to authorize a finding that the unlawful intent to interfere with custody coincided with the taking of a child in a county so as to establish venue in that county. Avery v. State, 149 Ga. App. 414, 254 S.E.2d 408 (1979).    When a parent lawfully removes the child from the state, but unlawfully retains custody out of state, the legislature intended that the victim's domicile, i.e., the custodial parent, should be the venue of any criminal prosecution. State v. Evans, 212 Ga. App. 415, 442 S.E.2d 287 (1994).    Court erred in making findings of facts on the venue issue, including the subjective intent of the accused; these factual issues are for the jury. State v. Evans, 212 Ga. App. 415, 442 S.E.2d 287 (1994).   Indictment sufficient to withstand general demurrer.    - Indictment alleging that the defendant, without lawful authority, did entice a child from the child's legal custodian, contrary to the laws of Georgia, was sufficient although the indictment did not allege that the defendant "knowingly or recklessly enticed" the child, pursuant to O.C.G.A. § 16-5-45(b)(1)(A), because the use of the verb "entice" described an intentional act. State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012).   When child has parent or guardian and when child has neither.    - Former Code 1933, § 26-1602 prescribes two offenses: (1) when the child has a parent or guardian; and (2) where the child has neither. In the former, the crime is against the parent. It is the fraudulent deprivation of the parent of the parent's right to the custody and dominion of a child, and the substitution of defendant's own dominion, custody, and control over the child for that of the parent. It is only when the parental control has been wrongfully attacked and abrogated that the offense of interference with custody is complete. Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938) (decided under former Code 1933, § 26-1602); LeCroy v. State, 77 Ga. App. 851, 50 S.E.2d 148 (1948);(decided under former Code 1933, § 26-1602).   Kidnapping by fraudulently enticing child from parent without consent or against parent's will.    - If a child be fraudulently decoyed or enticed away from its parent without the consent or against the will of the parent, it is not necessary to show that either force or malice entered into the transaction. The parental control has been wrongfully attacked and abrogated, though the child may have been willing to go away, without the necessity for the use of force, and where the accused had no ill will whatever against either parent or child. Rowell v. State, 41 Ga. App. 499, 153 S.E. 371 (1930) (decided under former Penal Code 1910, § 110).    On an indictment based on former Penal Code 1910, § 110 it is not necessary to prove that the child was "forcibly" or "maliciously" carried away, if it be shown that the child was fraudulently enticed away without the consent or against the will of the parent. Rowell v. State, 41 Ga. App. 499, 153 S.E. 371 (1930) (decided under former Penal Code 1910, § 110).    There is no violation if parent has lost parental control over child alleged to have been kidnapped as when the child has married. Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938) (decided under former Code 1933, § 26-1602).    Crime under former § 16-5-40(b) is against right of parent or guardian of the child and not against the child, and the consent of the child is immaterial. Sawyer v. State, 112 Ga. App. 885, 147 S.E.2d 60 (1966) (former § 16-5-40(b) related to the kidnapping of a child under the age of 16).   Consent of victim.    - That the child may have willingly allowed oneself to be enticed was of no consequence in a prosecution for kidnapping by maliciously enticing the child away against the will of the child's parents. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).   Limited action did not interfere with custody.    - Trial court properly denied the defendant's motion for new trial as to one count of interference with custody of a minor, but the convictions on the remaining three counts had to be reversed because only one of the counts of interference with custody of a minor established that the defendant interfered with the child's grandmother exercising the right to lawful custody since picking the child up from school did not interfere with the grandmother's right to custody. Owens v. State, 353 Ga. App. 848, 840 S.E.2d 70 (2020).   Interference with custody can be lesser included offense of kidnapping.    - Term "committed person" includes a dependent child under age 16 and in some cases interference with custody becomes a lesser included offense of kidnapping under former Code 1933, § 26-1311(b). All the same facts would be proven if the child taken was under age 16. The essential difference in the two crimes lies in the degree of culpability required to establish the commission of each crime. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975) (decided under former Code 1933, § 26-1311(b)).    Delusion suffered by defendant that defendant could give victim better life economically does not justify kidnapping a child. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983).   Father's testimony sufficient to infer lack of consent.    - Mother's lack of consent is an essential element of the offense of enticing away a female child under the age of 16 (now 17) years against the will of her parents. But the father's testimony alone that neither he nor his wife had given consent, together with the defendant's acknowledgment that he had not known the victim or her parents prior to the abduction, is sufficient to authorize the jury to infer want of parental consent. Kirk v. State, 252 Ga. 133, 311 S.E.2d 821 (1984).   Misapprehension as to age is not excuse.    - Fact that the accused was ignorant of the child's age, and that the accused believed, in good faith, and had good grounds to believe, that the child was more than eighteen years of age (now 17), is no defense to an indictment under former Penal Code 1910, § 110. Smiley v. State, 34 Ga. App. 513, 130 S.E. 359, cert. denied, 34 Ga. App. 836 (1925) (decided under former Penal Code 1910, § 110).   Parent taking child from parent with temporary custody is not guilty of kidnapping.    - As between the mother and father, when parental control has not been lost, and in the absence of a decree of court awarding custody, the general rule is that a parent does not commit the crime of kidnapping by taking exclusive control of the child. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962), commented on in 25 Ga. St. B. J. 327 (1963).   Evidence insufficient to authorize finding of guilt.    - Evidence showing that defendant retained possession of the minor child beyond the authorized visitation period because of unavoidable vehicle breakdowns was insufficient to authorize a finding of guilt. Scott v. State, 198 Ga. App. 10, 400 S.E.2d 677 (1990).    Conduct of defendant in taking a 15-year-old child to defendant's apartment when the child was supposed to be in school did not constitute a violation of O.C.G.A. § 16-5-45. Thompson v. State, 245 Ga. App. 396, 537 S.E.2d 807 (2000).   Evidence insufficient to authorize finding of guilt.    - Interference with custody not shown under O.C.G.A. § 16-5-45(b)(1)(A) after a hospital employee reported the situation to child services who then took the children away. Gwinnett Health Sys. v. DELU, 264 Ga. App. 863, 592 S.E.2d 497 (2003).   Registration as sex offender not required.    - Trial court properly permanently enjoined the Georgia Department of Corrections from requiring the defendant to register as a sex offender because the defendant's State of Alabama conviction for interference with custody of a child was under Georgia law a misdemeanor conviction that did not trigger the sex offender registration requirement. Owens v. Urbina, 296 Ga. 256, 765 S.E.2d 909 (2014).   Sentence beyond statutory maximum.    - Sentence of 12 months confinement upon a conviction of interference with custody exceeded the applicable statutory maximum and was therefore void; furthermore, contrary to the state's contention, the defendant's failure to first file a motion to correct the sentence in the trial court did not deprive the appellate court of jurisdiction to consider the issue. Arnold v. State, 278 Ga. App. 188, 628 S.E.2d 605 (2006).    Cited in In the Matter of Levin, 289 Ga. 170, 709 S.E.2d 808 (2011); Baker v. State, 316 Ga. App. 122, 728 S.E.2d 767 (2012); Carlson v. Carlson, 324 Ga. App. 214, 748 S.E.2d 304 (2013); Patterson v. State, 347 Ga. App. 105, 817 S.E.2d 557 (2018); In the Matter of Farmer, 307 Ga. 307, 835 S.E.2d 629 (2019).   OPINIONS OF THE ATTORNEY GENERAL   Authority of Georgia Crime Information Center to maintain records.   - Georgia Crime Information Center is authorized to maintain records of reported crime and, in some instances, to record information identifying persons charged with the commission of crime; however, the center is not authorized to maintain records identifying persons charged with disorderly conduct except when the charge is directly connected with or directly related to certain statutory offenses including interference with custody. 1976 Op. Att'y Gen. No. 76-33.   RESEARCH REFERENCES   C.J.S.   - 51 C.J.S., Kidnapping, § 30 et seq.   ALR.   - Violation of state court order by one other than party as contempt, 7 A.L.R.4th 893.   Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.   Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.   Validity, construction, and application of International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C.A. § 1204, 88 A.L.R. Fed. 2d 107.