join, concurring. I agree with the majority that, to the extent that Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993), suggests that a joint custodian, in the absence of a court order depriving him of some or all of his custodial rights, cannot be subject to criminal liability under General Statutes §§ 53a-97 and 53a-98, that case should be overruled. Indeed, I agree that there is nothing in the custodial interference statutes to preclude criminal liability for a joint custodian. Because the trial court in the present case dismissed the charges against the defendant based solely on the fact that the child’s father was a joint custodian and is inherently immune from criminal prosecution as a result of that status, I agree with the majority that this court should reverse the trial court’s judgment dismissing the criminal charges against the defendant.
*667I write separately, however, to emphasize that, in addition to the state’s argument that a joint custodian may be held criminally liable if, in abducting her own child, her intent is to hold the child permanently or for a protracted period of time, there is another essential element that the state must prove — knowledge.
In its briefs to this court, the state seeks, in effect, to create a presumption that a joint custodian knows from the moment a child is bom, that she has no legal right to interfere with the custody rights of the other parent. According to the state, “[o]ne joint custodian has no legal right to take a child from the other joint custodian with the intent to hold such child permanently or for a protracted period of time. A joint custodian has no legal right to unilaterally award himself/ herself sole custody of the child, infringing on the legal rights of the other joint custodian.” By ignoring the element of knowledge, the state proposes a rule that would allow criminal liability to be imposed upon a joint custodian who infringes upon the other parent’s custodial rights but who is merely acting to protect the child. The risk that criminal liability will be imposed upon a parent who takes her child to avoid further abuse to herself or her child is decidedly contrary to the important public policy of this state to “protect children whose health and welfare may be adversely affected through injury and neglect . . . and to make the home safe for all children . . . .” (Internal quotation marks omitted.) State v. Miranda, 245 Conn. 209, 230 n.23, 715 A.2d 680 (1998); see General Statutes § 17a-101 (a). Moreover, this risk of criminal liability for custodial interference in such circumstances is particularly disturbing in light of the fact that a parent has both common-law and statutory duties to protect or safeguard her minor child from harm. The breach of this duty may expose a parent to criminal liability for assault or risk of injury to her child or, ultimately, could *668result in the termination of her parental rights. See id., 215-17 (criminal liability); In re Lauren R., 49 Conn. App. 763, 772-73, 715 A.2d 822 (1998) (termination of parental rights).1
In addition, the imposition of criminal liability based upon this presumption of knowledge effectively could limit a parent’s rights under both the Uniform Child Custody Jurisdiction Act (UCCJA); General Statutes § 46b-90 et seq.; and the Parental Kidnapping Prevention Act of 1980. 28 U.S.C. § 1738A. A Connecticut court has jurisdiction to make a child custody determination when the child is physically present in the state and “it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. . . .” General Statutes § 46b-93 (a) (3) (B); see 28 U.S.C. § 1738A (c) (2) (C).2 The ability of a parent to invoke the salutary purposes of the UCCJA should not be adversely impacted in emergency situations by the threat of criminal liability for custodial interference. In instances in which the UCCJA anticipates the “holding” or “taking” of children, we can hardly presume that the parent acting to protect them knows that she has no legal right to do so.
Although the custodial interference statutes preface liability on the custodial status of the victimized parent, *669these statutes also focus on the accused parent, requiring the state to prove that she intended to hold the child permanently or for a protracted period of time; and that she knew that she had no legal right to engage in that activity. See General Statutes §§ 53a-97 and 53a-98. Admittedly, the majority acknowledges this element in footnote 8 of its opinion, but its limited treatment of the very significant issue of domestic violence, addressed by the amicus curiae Connecticut Women’s Education and Legal Fund, minimizes the severity of the problem. By treating this problem in so perfunctory a fashion, the court, in effect, lends credence to the state’s proposal, which essentially discounts the second mens rea element of the custodial interference statutes.
Knowledge cannot be presumed simply because the accused has a particular custodial status. Therefore, pursuant to §§ 53a-97 and 53a-98, the focus of the issue before the court rightfully must include an assessment of whether the accused knew that she had no right to interfere with the custodial rights of the victimized parent. In other words, the state must prove that the accused acted with the subjective knowledge that her actions constituted custodial interference. Without such a construction, potential liability under the custodial interference statutes would be determined by the fact finder applying his or her own morality, which could be linked to the accused’s status as a custodian rather than an assessment of whether the accused legally knew, as that term is defined; see General Statutes § 53a-3 (12); that she had no right to act as she did.
Indeed, if, in any given situation, the controlling consideration is a determination that the accused acted with an awareness that she had no “legal right” to interfere with the custodial rights of the other parent, then joint custody would not be a bar to conviction of a *670parent for custodial interference. As the majority opinion points out, legislative history supports the supposition that the crime of custodial interference was designed to protect against all unlawful interruption, even if the deprivation results from actions of a joint custodian. See footnote 9 of the majority opinion.
Rather than impute knowledge by virtue of one’s custodial status, the state must prove that the accused knew that she had no right to take the child. The onus belongs on the shoulders of the state, by virtue of the statute, to prove knowledge. But a woman who flees the home with her child to avoid physical abuse cannot be deemed to have done so knowing that she had no legal right. Moreover, it is not only in an emergency situation that I would presume the defendant’s lack of knowledge. Although properly motivated, contained •within the state’s efforts to make criminal liability easier to impose in abduction cases is the hidden danger that, in order to avoid criminal prosecution, the parent acting to protect the child must wait for an emergency to erupt or for physical harm to occur before she elects to leave the home to avoid the abuse. In addition to making a difficult situation dangerous, at best, and impossible, at worst, such a requirement would put the onus on the parent to justify her actions, in violation both of the statutes as well as common sense.
As the majority opinion makes clear, Orang Fabriz is not inherently immune from criminal prosecution solely on the basis of his status as joint custodian of Saba Fabriz. Therefore, the judgment of the trial court dismissing the charge of custodial interference against the defendant must be reversed, and the state should be given the opportunity to prove that the defendant knew that he had no legal right to interfere with the custodial rights of Lila Mirjavadi, Saba’s mother.
In light of the delicate balance of vital interests involved in this case, I believe that a parent should not be presented with this Hobson’s choice. To tell the party being abused that “you’re a criminal if you stay and a criminal if you leave” is not a very comforting message to send.
Indeed, under the UCCJA, numerous courts have exercised jurisdiction in “emergency” situations and have in fact altered custody arrangements where parents have kept children beyond permitted visitation periods or have removed children from one state to another to avoid the causes of the “emergency.” See Coleman v. Coleman, 493 N.W.2d 133, 137 (Minn. App. 1992) (children taken from Minnesota to Nebraska not abduction as contemplated by UCCJA); In the Matter of Vanessa E., 190 App. Div. 2d 134, 138, 597 N.Y.S.2d 672 (1993) (petition filed while child visiting mother).