Custody of the children often becomes one of the most contentious matters, if not the single most inflamatory issue, when parents separate or get divorced. In some scenarios, parents who feel that the decisions of judges are unfair choose to take matters into their own hands. They knowingly violate the terms of custody or visitation put in place by the courts.
How Does a Person Get Charged with Custodial Interference?
When a parent fails to return a child to the other parent or to otherwise comply with the terms of a court order for custody or visitation, that parent can face a charge of custodial interference. Although custodial interference is generally a misdemeanor, certain details of an individual case can give rise to felony charges and serious repercussions.
New York Custodial Interference Attorney
Have you been arrested in New York City for alleged custodial interference? First and most importantly, do not make any kind of statement to the authorities without legal representation. Reach out to a qualified, experienced custodial interference lawyer as soon as possible for support in protecting your rights and winning the most favorable outcome to your case that ultimtely results in the fewest possible penalties.
New York Custodial Interference Law: A Closer Look
An individual commits Custodial Interference in the Second Degree pursuant to New York Penal Law § 135.45 when he or she either:
Under New York Penal Law § 135.50, Custodial Interference in the Second Degree can get bumped up to Custodial Interference in the First Degree if an alleged offender commits the crime of Custodial Interference in the Second Degree and either:
Custodial Interference: The Consequences
Custodial Interference in the Second Degree is a Class A misdemeanor that is punishable by as much as one year of incarceration and/or a fine of up to $1,000.
Custodial Interference in the First Degree is a Class E felony that can get an offender up to four years in prison and/or a fine of up to $5,000.
State legislation does provide that an affirmative defense to a charge of Custodial Interference in the First Degree exists in situations where the alleged victim had been abandoned or in cases where the removing of the person was necessary in an emergency to protect the victim because he or she had been exposed to or threatened with mistreatment or abuse. A conviction for Custodial Interference can also have significant additional consequences with regard to any future custody agreements.
Case Study: People v. Garcia, 2014 NY Slip Op 24351
Ms. Garcia faced a charge of Custodial Interference in the Second Degree after she picked her daughter up from school on April 25, 2014, in violation of a Family Court Order granting custody of the child to the father. The Criminal Court in New York County found that the Information (also referred to as the Criminal Court Complaint) was insufficient because it did not make out a “prima facie” case that Ms. Garcia acted with intent to hold the child for a “protracted period,” and that she was aware she lacked the legal right to pick the child up from school. Although the Family Court Order established that Garcia lacked the legal right to pick the child up from school, the Information failed to allege that she had knowledge about the order because neither of the two service options—service by mail or service in person—was checked.
Resources for Custodial Interference Offenses in New York
You can visit the New York State Unified Court System website to find answers to frequently asked questions regarding all custody and visitation matters. The information on the website establishes the distinction between an order of custody and an order of visitation. It also has information about filing to have orders of custody or visitation changed. You will also find the link to the Custody/Visitation Enforcement Petition Program that allows you to fill out the correct petition to file your case in the Family Court.
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