NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6915
Appellant, ) Trial Court No. 4FA-S98-445CR
)
v. ) O P I N I O N
)
DISTRICT COURT, )
)
Appellee. ) [No. 1596 - July 17, 1998]
______________________________)
Appeal from the District Court, Fourth Judi-
cial District, Fairbanks, William R. Smith,
Magistrate.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Joseph W. Evans, Birch, Horton, Bittner & Cherot, for
Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
STEWART, Judge.
As defined in AS 11.41.330(a), the offense of custodial
interference is committed when any relative of a child "takes,
entices, or keeps that child ... from a lawful custodian," if the
relative knows that they have no legal right to do this and if the
relative's intent is to hold the child for a protracted period.
Under AS 11.41.320(a), the offense becomes custodial interference
in the first degree a class C felony if a person "violates
AS 11.41.330 and causes the victim to be removed from the state."
This appeal presents the following question: To prove
the offense of first-degree custodial interference, must the
government prove that the removal of the child from Alaska occurred
after the defendant committed the act of custodial interference?
Or does a person commit the offense of first-degree custodial
interference if they remove the child from Alaska (or otherwise
cause the child to be removed from Alaska) and then violate
AS 11.41.330 by unlawfully taking, enticing, or keeping the child
from a lawful custodian? For the reasons explained here, we hold
that a person commits first-degree custodial interference
regardless of whether the child's removal from Alaska occurs before
or after the person takes unlawful control of the child.
This case arose when the Fairbanks District Attorney's
office attempted to file a charge of first-degree custodial
interference against Roberta K. Renshaw. Ms. Renshaw, a California
resident, was formerly married to Alan Renshaw, who now lives in
Healy. At the time of their divorce, Alan was awarded custody of
the couple's son, B.R., and Roberta was given visitation rights.
In July 1997, B.R. traveled to California for scheduled
visitation with his mother. The visitation was to end on August
8th. However, Roberta Renshaw did not return B.R. to Alaska at the
end of the visitation. Instead, she quit her job, abandoned her
residence, and fled with B.R. to an unknown destination. Her
whereabouts and the whereabouts of her son B.R. are currently
unknown.
In February 1998, based on these facts, the state tried
to file a felony complaint against Renshaw, charging her with
first-degree custodial interference. However, Magistrate William
R. Smith refused to accept the complaint. Because B.R. had gone to
California in connection with Renshaw's scheduled period of
visitation, and because Renshaw's alleged act of custodial
interference occurred after B.R. arrived in California, the
magistrate ruled that the state had failed to prove first-degree
custodial interference. He therefore refused to accept the felony
complaint for filing, and he refused to issue a warrant for
Renshaw's arrest. [Fn. 1]
As noted above, AS 11.41.320(a) declares that the offense
of first-degree custodial interference is committed when a person
"violates AS 11.41.330 and causes the victim to be removed from the
state." Magistrate Smith interpreted this statute to mean that the
offense is committed only when a person violates AS 11.41.330 and
thereafter causes the victim to be illegally removed from Alaska.
Nothing in the language of the statute supports this
interpretation. The statute does not specify that the elements of
the offense must be committed in a particular temporal sequence,
nor does the statute specify that the removal of the victim from
Alaska must occur illegally.
In Strother v. State, [Fn. 2] we noted that one of the
chief purposes of Alaska's civil and criminal statutes governing
child custody is to deter abductions and other unilateral removals
of children by relatives seeking to obtain custody or to circumvent
custody decrees. We also agreed with the Oregon Court of Appeals
that "[t]he emotional and financial costs suffered by [a parent] in
trying to locate [an abducted child] are among the primary evils
that the [custodial interference] statute was intended to deter."
[Fn. 3]
These legislative concerns are heightened whenever the
abducting parent conceals (or even openly keeps) a child in another
state. The fact that the child is in another jurisdiction
increases the difficulty and expense of locating the child, and it
also increases the legal difficulty of returning the child to his
or her proper custodian.
From the perspective of the parent or guardian who is
unlawfully deprived of custody, and given the legislative goals
underlying the custodial interference statutes, it does not matter
whether the offending person failed to return the child at the end
of visitation and then removed the child from Alaska, or whether
the offending relative exercised visitation in another state and
then absconded with the child or otherwise refused to return the
child. In either situation, the result is the same: the innocent
custodian is deprived of the child, and the efforts of the state
and the custodian to regain custody of the child are hampered by
the fact that the child is in another jurisdiction.
We therefore conclude that the two elements of first-
degree custodial interference need not be committed in any
particular temporal sequence. The offense is proved if the state
establishes that the offending relative (1) committed custodial
interference as defined in AS 11.41.330(a), and (2) caused the
child to be removed from Alaska. Although the state must prove
that both of these elements existed at the time of the offense, it
is irrelevant whether the defendant committed custodial
interference and then caused the child to be removed from Alaska,
or vice-versa.
We REVERSE the magistrate's decision not to accept the
criminal complaint charging Renshaw with first-degree custodial
interference. The district court is directed to accept the
complaint for filing and to issue process upon that complaint.
FOOTNOTES
Footnote 1:
The magistrate indicated that he was willing to allow the
state to file an amended complaint charging second-degree custodial
interference, a misdemeanor.
Footnote 2:
891 P.2d 214, 219 (Alaska App. 1995).
Footnote 3:
State v. West, 688 P.2d 406, 408 (Or. App. 1984) (footnote
omitted), quoted in Strother, 891 P.2d at 221-22.
