§ 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and, if not, in any of the community-based shelter care facilities as provided for in Section 32-1-25.1 NMSA 1978 [repealed].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 [health care authority 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.

Legislative History

1978 Comp., § 30-4-4, enacted by Laws 1989, ch. 206, § 1.