Request By:
Hon. Robert E. Hawley
Judge, District Court,
38th Judicial District
Courthouse Square
Hartford, Kentucky 42347
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Richard C. Carroll, Assistant Attorney General
Your letter of November 17, 1989, has been assigned to me for a reply.
The question posed in your letter is:
Assuming, as suggested in OAG 85-28 that the District Court in a paternity action has exclusive jurisdiction, as a collateral matter, to establish custody and visitation rights regarding a child born out of wedlock can be it presumed that the substance of the opinion in OAG 76-047 which determined that the natural father of a child born out of wedlock cannot be prosecuted for custodial interference is inapplicable in those cases where the District Court has addressed by order the question of visitation and the putative father is in apparent violation of the terms of such order?
In reviewing this issue, I discovered that OAG 76-047 is not applicable to your question as that opinion dealt with the ability of a county judge to adjudicate the issue of visitation rights of a putative father. Instead, OAG 76-147 concerned itself with the question of the applicability of KRS 509.070 to whether the natural father of a child born out of wedlock could be prosecuted under the statute. In that opinion, it was stated that it was doubtful that KRS 509.070 could be applied to the natural father of illegitimate children, since the custodial issue is never fully adjudicated during such infancy. The opinion went on to state that this is true regardless of whether a Chapter 406 action is filed or not. According to that opinion, under this inchoate state of law, the natural father would not have the requisite knowledge that he has no right to interfere with the custody of such children.
After a thorough review and reconsideration of that opinion, I believe that an individual could be prosecuted under KRS 509.070 where a District Court has entered a child custody and visitation order under Chapter 406 and the father has notice of said order.
This opinion is based upon a simple reading of KRS 509.070 which provides that one is guilty of custodial interference when, knowing that he has no legal right to do so , he takes or enters or keeps from lawful custody any mentally disabled or other person entrusted by authority of law to the custody of another person.
There are no restrictions or limitations found in the statute as to its applicability to different classes of persons or orders of a court. Instead, it is general in nature and provides a defense to the crime if the person is returned voluntarily and before an arrest or issuance of an arrest warrant.
If paternity has been established under Chapter 406 and a custody and visitation order has been entered pursuant to that finding, a copy of which is received by the putative father, then KRS 509.070 should be applicable to a father who violates that visitation order. As noted in Section 10.08 of Brickley's Kentucky Criminal Law in regard to prosecution for custodial interference, "The actor must know he has no legal right to do what he is doing at the time, and the custody which is the subject of interference must be an entrustment by authority of law. " Id . at 96. See also "Kidnapping -- Taking of Own Child," 20 ALR 4th 823. Therefore, one who knowingly violates a properly established custody and visitation order entered pursuant to Chapter 406 should be subject to prosecution under KRS 509.070. To differentiate between those visitation orders entered under Chapter 406 from those entered under Chapter 403 or other chapters would establish an improper distinction between the children whom these orders cover. This longstanding improper classification between legitimate and illegitimate children is something that the U.S. Supreme Court and the Kentucky courts over the years have determined to be invalid under the U.S. and Kentucky Constitutions.
In conclusion, any individual who knowingly violates a child custody and visitation order entered pursuant to Chapter 406 may be prosecuted for violation of that order under KRS 509.070. OAG 76-147 is modified accordingly.