APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
504 N.E.2d 1339, 152 Ill. App. 3d 1074, 105 Ill. Dec. 821 1987.IL.245
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. NASH and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Defendant, Philip J. Caruso, was charged in separate two-count indictments with the offenses of child abduction (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10-5(b)(1)) and unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3) involving his two children, Kathleen Ann and Deborah Lynn Caruso. The child-abduction counts at issue in this appeal charge that on December 24, 1984, within Du Page County, defendant "intentionally violated the terms of a valid court order, entered December 20, 1977, in the Eighteenth Judicial Circuit, Du Page County, granting sole custody of [the child] to Janet Faye Caruso in that said defendant detained the child, . . . outside the jurisdiction of the court."
Defendant filed several motions to dismiss the indictments. The latest motion, and the only one ruled on by the trial court, was directed only to the child-abduction counts and was based on the constitutional prohibition against an ex post facto law. Essentially, defendant contended in this motion and in oral argument on the motion that the child-abduction statute, which was enacted in 1978 after he was alleged to have abducted the children in 1977, was an ex post facto law prohibited by article I, section 9, of the United States Constitution (U.S. Const., art. I, sec. 9) and article I, section 16, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 16). More specifically, defendant contended below and reasserts to this court that when he was charged with removing his children from Illinois in 1977, the act of removing his children was not a criminal offense under the Illinois Criminal Code and was not made an offense until the enactment of Public Act 80 -- 1393, effective August 22, 1978. Defendant also maintains that he is charged with conduct occurring outside the jurisdiction of the Illinois courts as the only part of the transaction which occurred in Illinois was the removal of the children in 1977, at a time when that act was not a criminal offense. The State does not dispute that defendant removed the children from Illinois in 1977 and that defendant and the children resided in Ohio at least through December 24, 1984, the date the indictment for the offense of child abduction was returned.
The State, however, argued below and maintains an appeal that the child-abduction statute does not just prohibit the initial taking of a child, but prohibits the detention of a child as well. The State contends that the offense of child abduction, as charged in the indictments at issue here, is for the detention of the children, a continuing act, and is therefore not based on the initial taking before the child-abduction statute was enacted. Instead, the indictments allege illegal conduct occurring on December 24, 1984, well after the enactment of the statute. Further, it is the State's position that defendant's acts of harboring his children outside this State and of failing to return them to their mother in violation of a court order of this State gives Illinois jurisdiction pursuant to section 1-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1-5).
While finding that the offense is a "continuing offense," the trial Judge dismissed the child-abduction counts, apparently concluding that the child-abduction statute, as applied to defendant while he was in another State, was an ex post facto law. The State appeals from the dismissal of the child-abduction counts pursuant to Supreme Court Rule 604(a)(1) (103 Ill. 2d R. 604(a)(1)).
The child-abduction statute, first enacted into law by Public Act 80-1393, effective August 22, 1978 (Ill. Rev. Stat. 1979, ch. 38, par. 10-5), and later amended in 1984 and in effect on December 24, 1984, the date alleged for the commission of the offense in the indictments, although subsequently amended again not pertinent to their appeal, provided, in part:
"A person commits child abduction when he or she:
(1) Intentionally violates any terms of a valid court order granting sole or joint custody to another, by concealing or detaining the child or removing the child from the jurisdiction of the court." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10-5(b)(1).)
This statute also defines "detains" as meaning "taking or retaining physical custody of a child, whether or not the child resists or objects." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10-5(a)(2).) It has been stated that the remedial purpose of this criminal statute, enacted by the legislature because the civil penalties are insufficient, is to protect the welfare of children "who are the sad detritus" of a divorce proceeding by attempting to establish a stable environment for them and to protect the rights of the custodial parent under a judgment. People v. Harrison (1980), 82 Ill. App. 3d 530, 532, 402 N.E.2d 822.
The State acknowledges that the amended version of the child-abduction statute in effect on December 24, 1984, the date alleged for the commission of the offense in the indictments, was clearly not an offense in 1977 when defendant took the children from Illinois in violation of a court order. Nevertheless, the State argues that the statute defendant is alleged to have violated is neither an ex post ...