13-1302. Custodial interference; child born out of wedlock; defenses; classification

A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:

1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.

2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.

3. If the person is one of two persons who have joint legal custody of a child, takes, entices or withholds from physical custody the child from the other custodian.

4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.

B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.

C. It is a defense to a prosecution pursuant to subsection A, paragraph 2 if both of the following apply:

1. The defendant has begun the process to obtain an order of protection or files a petition for custody within a reasonable period of time and the order of protection or petition states the defendant's belief that the child was at risk if left with the other parent.

2. The defendant is the child's parent and has the right of custody and the defendant either:

(a) Has a good faith and reasonable belief that the taking, enticing or withholding is necessary to protect the child from immediate danger.

(b) Is a victim of domestic violence by the other parent and has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.

D. Subsection A, paragraphs 2 and 3 do not apply to a person who is the child's parent if both of the following apply:

1. The person has filed an emergency petition regarding custodial rights with the superior court and has received a hearing date from the court.

2. The person has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.

E. A violation of this section is:

1. A class 3 felony if committed by a person other than the parent or agent of the parent or custodian or agent of the custodian.

2. Notwithstanding paragraph 3 of this subsection, a class 4 felony if the child or incompetent person is taken, enticed or kept from lawful custody out of this state by the parent or agent of the parent or custodian or the agent of the custodian.

3. A class 6 felony if committed by a parent or agent of the parent or custodian or agent of the custodian.

4. A class 1 misdemeanor if the child or incompetent person is voluntarily returned without physical injury by the parent or defendant or the agent of the parent or defendant no later than forty-eight hours after the parent or defendant takes, entices or keeps from lawful custody the child or incompetent person.