Editor's notes.

- In light of the similarity of the issues involved, decisions under former Penal Code 1910, § 110 and former Code 1933, § 26-1602, as it read prior to revision of the title by Ga. L. 1968, p. 1249, and former Code Section 16-5-40(b), are included in the annotations for this Code section.

Defendant cannot be in violation unless terms of custody order are clear.

- Defendant cannot be in violation of O.C.G.A. § 16-5-45 unless the terms of the custody order are so clear that the parties have exact notice of the line which may not be transgressed. Brassell v. State, 259 Ga. 590, 385 S.E.2d 665 (1989).

Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, where the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991).

Interference with custody is lesser included offense of kidnapping in some cases.

- Term "committed person" included a dependent child under age 16, and in some cases interference with custody becomes a lesser included offense of kidnapping under former Code 1933, § 26-1311(b). All the same facts would be proven if the child taken was under age 16. The essential difference in the two crimes laid in the degree of culpability required to establish the commission of each crime. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975) (decided prior to 1982 amendment of § 16-5-40 and this section).

Venue.

- Evidence was sufficient to authorize a finding that the unlawful intent to interfere with custody coincided with the taking of a child in a county so as to establish venue in that county. Avery v. State, 149 Ga. App. 414, 254 S.E.2d 408 (1979).

When a parent lawfully removes the child from the state, but unlawfully retains custody out of state, the legislature intended that the victim's domicile, i.e., the custodial parent, should be the venue of any criminal prosecution. State v. Evans, 212 Ga. App. 415, 442 S.E.2d 287 (1994).

Court erred in making findings of facts on the venue issue, including the subjective intent of the accused; these factual issues are for the jury. State v. Evans, 212 Ga. App. 415, 442 S.E.2d 287 (1994).

Indictment sufficient to withstand general demurrer.

- Indictment alleging that the defendant, without lawful authority, did entice a child from the child's legal custodian, contrary to the laws of Georgia, was sufficient although the indictment did not allege that the defendant "knowingly or recklessly enticed" the child, pursuant to O.C.G.A. § 16-5-45(b)(1)(A), because the use of the verb "entice" described an intentional act. State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012).

When child has parent or guardian and when child has neither.

- Former Code 1933, § 26-1602 prescribes two offenses: (1) when the child has a parent or guardian; and (2) where the child has neither. In the former, the crime is against the parent. It is the fraudulent deprivation of the parent of the parent's right to the custody and dominion of a child, and the substitution of defendant's own dominion, custody, and control over the child for that of the parent. It is only when the parental control has been wrongfully attacked and abrogated that the offense of interference with custody is complete. Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938) (decided under former Code 1933, § 26-1602); LeCroy v. State, 77 Ga. App. 851, 50 S.E.2d 148 (1948);(decided under former Code 1933, § 26-1602).

Kidnapping by fraudulently enticing child from parent without consent or against parent's will.

- If a child be fraudulently decoyed or enticed away from its parent without the consent or against the will of the parent, it is not necessary to show that either force or malice entered into the transaction. The parental control has been wrongfully attacked and abrogated, though the child may have been willing to go away, without the necessity for the use of force, and where the accused had no ill will whatever against either parent or child. Rowell v. State, 41 Ga. App. 499, 153 S.E. 371 (1930) (decided under former Penal Code 1910, § 110).

On an indictment based on former Penal Code 1910, § 110 it is not necessary to prove that the child was "forcibly" or "maliciously" carried away, if it be shown that the child was fraudulently enticed away without the consent or against the will of the parent. Rowell v. State, 41 Ga. App. 499, 153 S.E. 371 (1930) (decided under former Penal Code 1910, § 110).

There is no violation if parent has lost parental control over child alleged to have been kidnapped as when the child has married. Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938) (decided under former Code 1933, § 26-1602).

Crime under former § 16-5-40(b) is against right of parent or guardian of the child and not against the child, and the consent of the child is immaterial. Sawyer v. State, 112 Ga. App. 885, 147 S.E.2d 60 (1966) (former § 16-5-40(b) related to the kidnapping of a child under the age of 16).

Consent of victim.

- That the child may have willingly allowed oneself to be enticed was of no consequence in a prosecution for kidnapping by maliciously enticing the child away against the will of the child's parents. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).

Interference with custody can be lesser included offense of kidnapping.

- Term "committed person" includes a dependent child under age 16 and in some cases interference with custody becomes a lesser included offense of kidnapping under former Code 1933, § 26-1311(b). All the same facts would be proven if the child taken was under age 16. The essential difference in the two crimes lies in the degree of culpability required to establish the commission of each crime. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975) (decided under former Code 1933, § 26-1311(b)).

Delusion suffered by defendant that defendant could give victim better life economically does not justify kidnapping a child. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983).

Father's testimony sufficient to infer lack of consent.

- Mother's lack of consent is an essential element of the offense of enticing away a female child under the age of 16 (now 17) years against the will of her parents. But the father's testimony alone that neither he nor his wife had given consent, together with the defendant's acknowledgment that he had not known the victim or her parents prior to the abduction, is sufficient to authorize the jury to infer want of parental consent. Kirk v. State, 252 Ga. 133, 311 S.E.2d 821 (1984).

Misapprehension as to age is not excuse.

- Fact that the accused was ignorant of the child's age, and that the accused believed, in good faith, and had good grounds to believe, that the child was more than eighteen years of age (now 17), is no defense to an indictment under former Penal Code 1910, § 110. Smiley v. State, 34 Ga. App. 513, 130 S.E. 359, cert. denied, 34 Ga. App. 836 (1925) (decided under former Penal Code 1910, § 110).

Parent taking child from parent with temporary custody is not guilty of kidnapping.

- As between the mother and father, when parental control has not been lost, and in the absence of a decree of court awarding custody, the general rule is that a parent does not commit the crime of kidnapping by taking exclusive control of the child. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962), commented on in 25 Ga. St. B.J. 327 (1963).

Evidence insufficient to authorize finding of guilt.

- Evidence showing that defendant retained possession of the minor child beyond the authorized visitation period because of unavoidable vehicle breakdowns was insufficient to authorize a finding of guilt. Scott v. State, 198 Ga. App. 10, 400 S.E.2d 677 (1990).

Conduct of defendant in taking a 15-year-old child to defendant's apartment when the child was supposed to be in school did not constitute a violation of O.C.G.A. § 16-5-45. Thompson v. State, 245 Ga. App. 396, 537 S.E.2d 807 (2000).

Evidence insufficient to authorize finding of guilt.

- Interference with custody not shown under O.C.G.A. § 16-5-45(b)(1)(A) after a hospital employee reported the situation to child services who then took the children away. Gwinnett Health Sys. v. DELU, 264 Ga. App. 863, 592 S.E.2d 497 (2003).

Registration as sex offender not required.

- Trial court properly permanently enjoined the Georgia Department of Corrections from requiring the defendant to register as a sex offender because the defendant's State of Alabama conviction for interference with custody of a child was under Georgia law a misdemeanor conviction that did not trigger the sex offender registration requirement. Owens v. Urbina, 296 Ga. 256, 765 S.E.2d 909 (2014).

Sentence beyond statutory maximum.

- Sentence of 12 months confinement upon a conviction of interference with custody exceeded the applicable statutory maximum and was therefore void; furthermore, contrary to the state's contention, the defendant's failure to first file a motion to correct the sentence in the trial court did not deprive the appellate court of jurisdiction to consider the issue. Arnold v. State, 278 Ga. App. 188, 628 S.E.2d 605 (2006).

Cited in In the Matter of Levin, 289 Ga. 170, 709 S.E.2d 808 (2011); Baker v. State, 316 Ga. App. 122, 728 S.E.2d 767 (2012); Carlson v. Carlson, 324 Ga. App. 214, 748 S.E.2d 304 (2013); Patterson v. State, Ga. App. , 817 S.E.2d 557 (2018).

Authority of Georgia Crime Information Center to maintain records.

- Georgia Crime Information Center is authorized to maintain records of reported crime and, in some instances, to record information identifying persons charged with the commission of crime; however, the center is not authorized to maintain records identifying persons charged with disorderly conduct except when the charge is directly connected with or directly related to certain statutory offenses including interference with custody. 1976 Op. Att'y Gen. No. 76-33.

C.J.S.

- 51 C.J.S., Kidnapping, § 30 et seq.

ALR.

- Violation of state court order by one other than party as contempt, 7 A.L.R.4th 893.

Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.

Validity, construction, and application of International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C.A. § 1204, 88 A.L.R. Fed. 2d 107.