The State appeals the trial court's dismissal of the indictment charging Evans with interference with lawful custody.
Charles and Susan Evans divorced in December 1990 and entered into an agreement regarding custody and support of and visitation with their two children. The agreement was incorporated into the final decree. Ms. Evans was given custody of the two children, with visiting rights in Mr. Evans. She lived in Morgan County, within 100 miles of his residence in Fulton County. The agreement provided, as pertinent here, that "the FATHER will be responsible for or provide for the children's transportation to his home for visitation with FATHER; for so long as she lives within one hundred (100) mile radius of the FATHER, the MOTHER shall be responsible for or provide for picking up the children at the end of visitation with the FATHER."
Mr. Evans was charged under OCGA 16-5-45
(c) (2), which states that interstate interference with custody occurs "when the person removes a minor or committed person 1
from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation." (Emphasis supplied.) The indictment specifically charged that Evans did "remove [the child] from this state in lawful exercise of a visitation right and upon the expiration of the period of lawful visitation did further intentionally retain possession of the minor in another state for the purpose of keeping the minor away from the individual having lawful custody of the minor, [the mother]."
Defendant Evans initially filed a general demurrer to the Morgan County indictment, contending that venue was properly in Fulton County since, under the terms of the agreement, that is where Ms. Evans would pick up the child, not Morgan County, the domicile of the mother and child and to which they would have eventually reand kept the child in another state after his lawful period of visitation ended at midnight on July 31.
As stated in Stroud v. State, 200 Ga. App. 387 (408 SE2d 175) (1991)
, which discussed the differences in the kidnapping and interference with custody statutes, "the offenses differ in the classification of the victim which each statute seeks to protect -- . . . the lawful custodian whose custody has been interfered with in the case of interference with custody." Id. at 390. See Sawyer v. State, 112 Ga. App. 885
, 888 (2b) (147 SE2d 60
Assuming, without deciding, that the venue provision merited statutory interpretation, the legislature is deemed to have understood this difference and to have acted upon it. OCGA 1-3-1
. The logical conclusion is that, where 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.
Therefore, the dismissal of the indictment was error.
Guy E. Davis, Jr., for appellee.