E-3 Custodial Interference and Child Abuse

Kansas Legislator
Briefing Book
2011
Children and Youth
E-3
Custodial
Interference and
Child Abuse
Other Children
and Youth reports
available
E-1
Tobacco/Children’s
Initiatives Fund
E-2
Juvenile Justice
Authority
E-4
Child Custody
Process/Visitation
E-5
Child in Need of
Care Proceedings
Children and Youth
E-3 Custodial Interference and Child Abuse
Current Law
KSA 21-3422 and 21-3422a outline the crimes of “interference with
parental custody” and “aggravated interference with parental custody.” In
KSA 21-3422, “interference with parental custody” is defined as “leading,
taking, carrying away, decoying, or enticing away any child under the
age of 16 years with the intent to detain or conceal such child from its
parent, guardian, or other person having lawful charge of such child.” An
individual prosecuted for interference with parental custody cannot use
joint custody as a defense. This crime is a class A person misdemeanor if
the perpetrator is a parent entitled to joint custody of the child; in all other
cases it is a severity level 10, person felony.
KSA 21-3422a lists certain circumstances in which the crime
of interference with parental custody will be considered “aggravated,”
including:
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Hiring someone to commit the crime of interference
with parental custody; or
The commission of interference with parental
custody, by a person who:
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Changes in Child
Care Facility
Requirements
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Has previously been convicted of
the crime;
Commits the crime for hire;
Lauren Douglass,
Research Analyst
785-296-3181
Lauren.Douglass@klrd.ks.gov
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Takes the child outside the state
without the consent of either the
person having custody or the court;
After lawfully taking the child outside
the state while exercising visitation

Kansas Legislative Research Department
rights or parenting time, refuses to return the child at the expiration
of that time;
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At the expiration of the exercise of any visitation rights or parenting
time outside the state, refuses to return or impedes the return of the
child; or
Detains or conceals the child in an unknown place, whether inside
or outside the state.
This crime is a severity level 7, person felony.
Minor changes to KSA 21-3422 appear in 2010 HB 2668, the criminal recodification bill, in New
Section 44, which will take effect July 1, 2011. In that bill “interference with parental custody” is defined
as “taking or enticing away any child under the age of 16 years with the intent to detain or conceal
such child from the child’s parent, guardian or other person having the lawful charge of such child.”
The circumstances for aggravated interference with parental custody remain the same although, in the
recodification, the two statutes are combined.
These statutes highlight the fact that if a noncustodial parent believes his or her child needs
protection from the custodial parent, he or she must take action under the Kansas Protection from Abuse
Act (KPAA), KSA 60-3101, et seq., or the Kansas divorce and maintenance statutes, KSA 60-1601, et
seq.
The KPAA allows a “parent of . . . a minor child [to] seek relief under the protection from abuse act
on behalf of the minor child by filing a verified petition with any district judge or with the clerk of the court
alleging abuse by another intimate partner or household member.” If the court is not available, a “verified
petition, accompanied by a proposed order, may be presented to any district judge” who may then grant
emergency relief in an ex parte procedure.
Regardless of whether the court grants an order for emergency relief, the court must hold a hearing
within 20 days of the petition’s filing. Prior to this hearing, the parent who originally filed the petition may
file a motion for temporary relief, to which the court may grant an ex parte temporary order with a finding
of good cause shown. The temporary order remains in effect until the hearing on the petition, at which
time the parent who filed the petition “must prove the allegation of abuse by a preponderance of the
evidence”; the other parent has a right to present evidence on his or her own behalf. At the hearing, the
court has the authority to grant a wide variety of protective orders it believes are necessary to protect
the child from abuse, including awarding temporary custody. The protective order remains in effect for a
maximum of one year but, on motion of the parent who originally filed the petition, may be extended for
one additional year.
The Kansas divorce and maintenance statutes allow the court to make a more permanent
modification to any prior custody order. This modification can be made only where a material change of
circumstances is shown, and no ex parte order can be issued except in the case that sworn testimony
supports a showing of extraordinary circumstances. Even if an order is issued ex parte, a hearing must be
held within 15 days following a request for a hearing by the party adversely affected by the new order.
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Recent Legislative Proposals
Kansas Legislative Research Department
2007 SB 182 would have amended KSA 21-3422 to allow for a parent to remove a child from the
custodial parent without a prior judicial determination, if there is a “good faith and reasonable belief that
such action . . . [is] necessary to protect the child or the parent from being subjected to or threatened with
mistreatment or abuse” as long as the parent “reported the removal to the district or county attorney in
the county in which the child resided” as soon as circumstances allowed. The bill also would have allowed
a parent to assert a defense to a prosecution under KSA 21-3422 if the parent “in good faith reasonably
believed that the action was necessary to protect the defendant or the minor child or both from being
subjected to or threatened with mistreatment or abuse.” The bill would have amended KSA 21-3422a to
include similar provisions. 2007 SB 182 died in committee.
Special Committee on Judiciary 2007 Recommendations
The 2007 Special Committee on Judiciary was directed by the Legislative Coordinating Council
to review the topic of allowing a parent to remove a child from the custodial parent to protect the child
from abuse. Sandra Barnett, Executive Director, Kansas Coalition Against Sexual and Domestic Violence
(KCSDV), suggested new language for the existing law to cure any problems that such legislation may
create. While the language was drafted with the help of the Attorney General’s Office, it was not endorsed
at that time by the Attorney General. The Attorney General and KCSDV later agreed to add language to
create a defense for parents who justifiably removed a child from the custody of another parent.
Ultimately, however, based upon its study, the Committee concluded there had been no evidence
that non-custodial parents were removing children to protect them from an abusive custodial parent. The
consensus of the Committee was that the matter needed further study. It was suggested the interested
groups confer and try to reach an agreement on any proposed legislation. The Committee did not propose
any legislation.
For more information, please contact:
Lauren Douglass, Research Analyst
Lauren.Douglass@klrd.ks.gov
Athena Andaya, Principal Analyst
Athena.Andaya@klrd.ks.gov
Kansas Legislative Research Department
300 SW 10th Ave., Room 68-West, Statehouse
Topeka, Kansas 66612
Phone: (785) 296-3181
Fax: (785) 296-3824
2011 Legislator Briefing Book page 3 E-3