1. A person commits child custody interference if the person, whether a parent or other, or agent of that person, intentionally and without lawful authority:

1. (a) Takes, entices away, keeps or withholds any minor child from a parent or another person or institution having custody, joint custody, visitation or other parental rights, whether such rights arise from temporary or permanent custody order, or from the equal custodial rights of each parent in the absence of a custody order; or

2. (b) Takes, entices away, keeps or withholds a minor child from a parent after commencement of an action relating to child visitation or custody but prior to the issuance of an order determining custody or visitation rights.

   1. (a) The action is taken to protect the child from imminent physical harm;
   2. (b) The action is taken by a parent fleeing from imminent physical harm to himself;
   3. (c) The action is consented to by the lawful custodian of the child; or

   4. (d) The child is returned within twenty-four (24) hours after expiration of an authorized visitation privilege.

      3. A violation of the provisions of subsection 1. of this section shall be a felony, unless the defendant did not take the child outside the state, and the child was voluntarily returned unharmed prior to the defendant’s arrest in which case the violation shall be reduced to a misdemeanor.

      4. Any reasonable expenses incurred by a lawful custodian in locating or attempting to locate a child taken in violation of the provisions of subsection 1. of this section may be assessed against the defendant at the court’s discretion in accordance with chapter 53, title 19, Idaho Code.

   2. It shall be an affirmative defense to a violation of the provisions of subsection 1. of this section that:

[18-4506, added 1987, ch. 88, sec. 1, p. 168.]