Tennessee § 39-13-306 - Custodial interference.

§ 39-13-306. Custodial interference.

It is the offense of custodial interference for a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of a child younger than eighteen (18) years of age to: Remove the child from this state knowing that the removal violates a child custody determination as defined in § 36-6-205, the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or court order regarding the custody or care of the child; Detain the child within this state or remove the child from this state after the expiration of the noncustodial natural or adoptive parent or guardian's lawful period of visitation, with the intent to violate the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or a court order regarding the custody or care of the child; Harbor or hide the child within or outside this state, knowing that possession of the child was unlawfully obtained by another person in violation of the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or a court order; Act as an accessory to any act prohibited by this section; or Detain the child within or remove the child from this state during the noncustodial parent's lawful period of visitation, with the intent to violate the court-ordered visitation of the noncustodial parent, or a temporary or permanent judgment regarding visitation with the child. It is also the offense of custodial interference for a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of an incompetent person to: Remove the incompetent person from this state knowing that the removal violates a temporary or permanent judgment or a court order regarding the custody or care of the incompetent person; Harbor or hide the incompetent person within or outside this state, knowing that possession of the incompetent person was unlawfully obtained by another person in violation of a temporary or permanent judgment or a court order; or Act as an accessory to any act prohibited by this section. It is a defense to custodial interference: That the person who removed the child or incompetent person reasonably believed that, at the time the child or incompetent was removed, the failure to remove the child or incompetent person would have resulted in a clear and present danger to the health, safety, or welfare of the child or incompetent person; or That the individual detained or moved in contravention of the rightful custody of a mother as defined in § 36-2-303, or of the order of custody or care, was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest. If conduct that is in violation of this section is also a violation of § 39-13-304 or § 39-13-305(a)(1), (a)(3), or (a)(4), the offense may be prosecuted under any of the applicable statutes. Except as provided in subdivision (e)(2), custodial interference is a Class E felony, unless the person taken from lawful custody is returned voluntarily by the defendant, in which case custodial interference is a Class A misdemeanor. Custodial interference under subdivision (a)(5) is a Class C misdemeanor. Acts 1989, ch. 591, § 1; T.C.A., § 39-13-304 ; Acts 1990, ch. 982, § 1; 2004, ch. 834, § 1; 2016, ch. 725, §§ 1, 2. Sentencing Commission Comments. This section addresses interference with the custody of any minor or incompetent person by detaining or moving the individual in violation of a court order or judgment. Prior code § 39-2-303 [repealed] only protected children under the age of sixteen. Prosecution for this offense is available only when the defendant is related to the individual in one of the familial relationships listed in subsection (a). If one of these relationships is not present, the defendant must be prosecuted under §§ 39-13-302 — 39-13-305 . If one of these familial relationships is present but an aggravating factor exists, pursuant to subsection (c) the defendant may be prosecuted under the aggravated kidnapping or especially aggravated kidnapping statutes. Subsection (b) provides a defense if the individual is returned by the defendant voluntarily before arrest or the issuance of a warrant for arrest. If the individual is returned voluntarily by the defendant after arrest or the issuance of a warrant, the punishment is lowered to a Class A misdemeanor. These provisions are designed to encourage the return of the individual detained or moved. Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Cross-References. Culpability, title 39, ch. 11, part 3. False imprisonment, § 39-13-302 . Kidnapping, title 39, ch. 13, part 3. Mental health and intellectual and developmental disabilities, title 33. Missing Children Recovery Act, title 37, ch. 10, part 2. Penalty for Class A misdemeanor, § 40-35-111 . Penalty for Class C misdemeanor, § 40-35-111 . Penalty for Class E felony, § 40-35-111 . Schools or day care centers, change in physical custody of child, § 36-6-105 . Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 28.114. Law Reviews. Two Crimes for the Price of One: The Problem with Kidnapping Statutes in Tennessee and Beyond (Melanie A. Prince), 76 Tenn. L. Rev. 789 (2009).