2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 4 - Kidnapping
Section 30-4-4 - Custodial interference; penalties.
A. As used in this section:
(1) "child" means an individual who has not reached his eighteenth birthday;
(2) "custody determination" means a judgment or order of a court of competent jurisdiction providing for the custody of a child, including visitation rights;
(3) "person" means any individual or legal entity, whether incorporated or unincorporated, including the United States, the state of New Mexico or any subdivision thereof;
(4) "physical custody" means actual possession and control of a child; and
(5) "right to custody" means the right to physical custody or visitation of a child arising from:
(a) a parent-child relationship between the child and a natural or adoptive parent absent a custody determination; or
(b) a custody determination.
B. Custodial interference consists of any person, having a right to custody of a child, maliciously taking, detaining, concealing or enticing away or failing to return that child without good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child of his right to custody. Whoever commits custodial interference is guilty of a fourth degree felony.
C. Unlawful interference with custody consists of any person, not having a right to custody, maliciously taking, detaining, concealing or enticing away or failing to return any child with the intent to detain or conceal permanently or for a protracted time that child from any person having a right to custody of that child. Whoever commits unlawful interference with custody is guilty of a fourth degree felony.
D. Violation of Subsection B or C of this section is unlawful and is a fourth degree felony.
E. A peace officer investigating a report of a violation of this section may take a child into protective custody if it reasonably appears to the officer that any person will flee with the child in violation of Subsection B or C of this section. The child shall be placed with the person whose right to custody of the child is being enforced, if available and appropriate, and, if not, in any of the community-based shelter care facilities as provided for in Section 32-1-25.1 NMSA 1978 [repealed].
F. Upon recovery of a child a hearing by the civil court currently having jurisdiction or the court to which the custody proceeding is assigned, shall be expeditiously held to determine continued custody.
G. A felony charge brought under this section may be dismissed if the person voluntarily returns the child within fourteen days after taking, detaining or failing to return the child in violation of this section.
H. The offenses enumerated in this section are continuous in nature and continue for so long as the child is concealed or detained.
I. Any defendant convicted of violating the provisions of this section may be assessed the following expenses and costs by the court, with payments to be assigned to the respective person or agency:
(1) any expenses and costs reasonably incurred by the person having a right to custody of the child in seeking return of that child; and
(2) any expenses and costs reasonably incurred for the care of the child while in the custody of the human services department.
J. Violation of the provisions of this section is punishable in New Mexico, whether the intent to commit the offense is formed within or outside the state, if the child was present in New Mexico at the time of the taking.
History: 1978 Comp., § 30-4-4, enacted by Laws 1989, ch. 206, § 1.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Section 32-1-25.1 NMSA 1978, was repealed by Laws 1993, ch. 77, § 234, effective July 1, 1993. For present comparable provisions, see 32A-4-8 NMSA 1978.
Repeals and reenactments. — Laws 1989, ch. 206, § 1 repealed former 30-4-4 NMSA 1978, as enacted by Laws 1977, ch. 58, § 1, relating to custodial interference, and enacted a new section, effective April 4, 1989.
Cross references. — For provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act, see 40-10A-101 to 40-10A-403 NMSA 1978.
Severability. — Laws 1989, ch. 206, § 2 provides for the severability of the act if any part or application thereof is held invalid.
Sufficient evidence to support custodial interference. — Where custody of the defendant's child was transferred to the children, youth and families department; the child was placed in a foster home; the child left the foster home and returned to the defendant's home; the defendant allowed the child to stay with the defendant in the defendant's home and never informed either the police or the children, youth and families department that the child was doing so, the evidence was sufficient to support the defendant's conviction of custodial interference. State v. Romero, 2009-NMCA-012, 145 N.M. 594, 203 P.3d 125, cert. quashed, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29.
Section not unconstitutionally vague. — The terms "without good cause," "protracted time," "maliciously," "detaining," and "deprive permanently" as used in this section are of such well recognized meaning that individuals are placed on notice of the conduct sought to be proscribed and, therefore, the section is not unconstitutionally vague. State v. Luckie, 1995-NMCA-075, 120 N.M. 274, 901 P.2d 205, cert. denied, 120 N.M. 184, 899 P.2d 1138.
Jurisdiction. — The child must be present in New Mexico when criminal acts of custodial interference are committed for New Mexico to have criminal jurisdiction. State v. Sung, 2000-NMCA-031, 128 N.M. 786, 999 P.2d 430.
Proper venue for the trial of the offense of custodial interference. — In the event elements of a crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed. Interfering with or depriving a custodial parent of their right to custody is an essential element of the crime of custodial interference as are the methods for accomplishing the interference or deprivation. Because deprivation is an element, where the person was deprived of the right of custody establishes a proper venue for the trial of the offense of custodial interference. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.
Where defendant violated an order of custody, issued by a Taos county district court, by depriving the father of the child of his right to custody, the father's right to custody exists with him in his county of residence, the county in which he was given custody, and the county in which he was deprived of the custody of his son. Under the custodial interference statute, a person may be charged in the place where the harm sought to be prevented by the statute results, and therefore venue may lie in Taos county district court. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.
Elements of custodial interference. — To be guilty of custodial interference for taking the children for two weeks, the defendant had to have engaged in either interference by "taking" or "failing to return" the children without good cause. State v. Munoz, 2006-NMSC-005, 139 N.M. 106, 129 P.3d 142.
Protracted period of time. — Trial court's refusal to give defendant's requested jury instruction defining "protracted period of time" was not erroneous because the meaning of the phrase is readily understandable and the defendant argued in closing arguments that two weeks was not long enough. State v. Munoz, 2006-NMSC-005, 139 N.M. 106, 129 P.3d 142.
Good cause. — The term "good cause" encompasses the concepts of subjective "good faith" and objective reasonableness of the defendant and therefore a defendant must have an honest belief that his actions are necessary to protect a child from harm and that honest belief must be reasonable. State v. Munoz, 2006-NMSC-005, 139 N.M. 106, 129 P.3d 142.
Defense waived by no contest plea. — Although defendant's challenge to the jurisdiction of a Missouri court in entering a modification to an earlier divorce decree is a defense to the charges of custodial interference, defendant waived the defense when he entered a no contest plea. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, rev'd, 2006-NMSC-043, 140 N.M. 406, 143 P.3d 168.
Legal right to custody not absolute. — Parents' natural and legal right to custody of their children is prima facie and not an absolute right. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134.
Parent's natural right to custody includes the right to remove the child from this jurisdiction in the absence of any legal modification of that right, but that right may be lost through court order. State v. Whiting, 1983-NMCA-123, 100 N.M. 447, 671 P.2d 1158.
Parental right to custody curtailed by custody order. — Because of the custody order under Sections 40-4-7B(4) and 40-4-9.1 NMSA 1978, defendant's otherwise natural and usual right to remove her children from the court's jurisdiction is curtailed to the extent that she could not do so without the court's consent. State v. Whiting, 1983-NMCA-123, 100 N.M. 447, 671 P.2d 1158.
Right continues until terminated by appropriate authority. — A parent has a legal right to the custody of his child unless that right had been terminated, however temporarily, by appropriate authority. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134.
Double jeopardy violation. — Where, although there were three children involved, the alleged violation relates to only one custody order for all the children, the court violated double jeopardy requirements in convicting defendant on three counts of custodial interference, and sentencing defendant consecutively on each count. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, rev'd, 2006-NMSC-043, 140 N.M. 406, 143 P.3d 168.
Written judgment required. — A parent's legal right to custody of a child does not end until entry of, and the giving of, notice of a judgment in compliance with Rule 62(a), N.M.R. Child. Ct. (see Rule 10-352 NMRA), requiring a signed written judgment and disposition. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134.
Law reviews. — For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev. 325 (1982).
For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 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 or abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.
