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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

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New York Custodial Interference

By Spodek Law Group | October 18, 2023
(Last Updated On: October 19, 2023)

Last Updated on: 19th October 2023, 07:28 pm

New York Custodial Interference Laws: A Helpful Guide for Parents and Caregivers

Custodial interference refers to when someone takes a child or incompetent person from their lawful guardian without permission. This can lead to criminal charges in New York. Custodial interference laws aim to protect children and vulnerable people from being taken unlawfully. However, these laws are complex with many nuances. This article will explain New York’s custodial interference laws in an easy to understand way. We’ll cover the key charges, penalties, defenses, and provide tips for avoiding violations.

Overview of Custodial Interference Charges in New York

New York has two main custodial interference charges under Penal Law Article 135:

  • Custodial Interference in the Second Degree – A misdemeanor charge for unlawfully taking a child under 16 or an incompetent person from their lawful guardian (Penal Law 135.45)
  • Custodial Interference in the First Degree – A felony charge for committing second-degree custodial interference plus an aggravating factor like removing the person from the state (Penal Law 135.50)

These charges apply to relatives and non-relatives. The relative/non-relative distinction affects the level of intent that must be proven. We’ll explore this more below.

Custodial interference contains complex definitions like “lawful custody” and “protracted period.” Whether someone has lawful custody depends on factors like:

  • Court orders granting legal custody or visitation
  • The legal rights of unwed fathers
  • Abandonment and emergency exceptions

“Protracted period” is also subjective. It means holding the child longer than authorized, but there’s no clear time limit.

Penalties for Custodial Interference Convictions

Custodial interference penalties get harsher as the charges become more serious (Penal Law 135.50):

  • Second-Degree – Up to 1 year in jail and/or probation up to 3 years
  • First-Degree – Up to 4 years in state prison and/or probation up to 5 years

First-degree custodial interference is a felony conviction. This results in a permanent criminal record with long-lasting consequences.

Other possible penalties include:

  • Fines and mandatory surcharges – For example, a $500 fine plus $300 surcharge per misdemeanor
  • Orders of protection prohibiting contact with the child or guardian
  • Loss of visitation rights
  • Termination of parental rights in severe cases
  • Difficulty finding employment, especially in childcare fields

The court determines penalties based on factors like criminal history and the circumstances of the case.

Elements of Custodial Interference Charges

For any criminal charge, the prosecution must prove all elements of the offense beyond a reasonable doubt. This section covers the elements of New York’s custodial interference laws.

Second-Degree Custodial Interference Elements

Under Penal Law 135.45, second-degree custodial interference requires:

For taking a child under 16:

  • The defendant was a relative of the child
  • The defendant intended to hold the child for a prolonged period or permanently
  • The defendant knew they had no legal right to take or keep the child
  • The defendant took or enticed the child from their lawful guardian

For taking an incompetent person:

  • The defendant knew they had no legal right to take the person
  • The defendant took or enticed the person from lawful custody

The main distinction is that only relatives need to prove intent for children under 16. Non-relatives simply need knowledge they lacked custody rights.

First-Degree Custodial Interference Elements

Under Penal Law 135.50, first-degree custodial interference requires:

  • Committing second-degree custodial interference
  • Aggravating factor:
    • Removing the person from New York State
    • Endangering the person’s safety or health

First-degree builds upon the elements of second-degree. The prosecution must first establish second-degree interference before the aggravating factor.

Defenses to Custodial Interference Charges

Several defenses could potentially defeat custodial interference charges:

  • No unlawful intent – For instance, you took the child briefly for a family emergency without intending to keep them.
  • No knowledge of unlawful custody – You mistakenly thought you had lawful custody rights over the child when taking them.
  • Abandonment – An affirmative defense that the lawful guardian abandoned the child, allowing you to take custody.
  • Protection from abuse – An affirmative defense that taking the child was necessary to protect them from abuse or mistreatment by the guardian.
  • Ambiguous custody order – A custody or visitation order lacked clarity about your rights, leading you to make an honest misunderstanding.
  • Return of child – You returned the child voluntarily within a reasonable time.
  • No unlawful removal from state – For first-degree charges, you did not actually remove the person from New York or endanger them.

An experienced criminal defense attorney can evaluate whether any defenses apply to your case.

Avoiding Violations of Custodial Interference Laws

Here are some tips to avoid custodial interference issues when co-parenting or caring for a child:

  • Follow all court orders – Only exercise custody and visitation per what’s in your court orders. Consult an attorney if anything is unclear.
  • Discuss changes with other parent – Communicate with the other parent before making any changes to the custody schedule.
  • Don’t deny court-ordered visitation – You must comply with visitation terms in custody orders. Withholding access can lead to charges.
  • Address safety concerns properly – If you have concerns about abuse, mistreatment, or abandonment, document evidence and go through proper legal channels. Unlawfully taking custody could backfire.
  • Consult an attorney about rights – If you’re unsure what lawful rights you have regarding a child, speak to a family law or criminal defense lawyer. Never make assumptions.
  • Don’t take matters into your own hands – As frustrating as custody disputes can be, never take the law into your own hands. Doing so often makes the situation worse.
  • Be careful with incompetent adults – Similar unlawful custody rules apply to taking vulnerable adults with appointed guardians. Tread carefully here.

Custodial interference allegations can be extremely stressful for parents and caregivers. These charges threaten your freedom and relationship with a child or loved one.

If you’re facing accusations of custodial interference, it’s critical to have an experienced criminal defense attorney on your side. A knowledgeable lawyer can argue against the charges and protect your rights. They may also be able to negotiate alternatives to conviction like probation or pretrial diversion.

When choosing an attorney, look for someone with extensive experience fighting custodial interference and related family offense charges. Ask about their specific credentials defending these types of cases. Be sure they understand the complexities of custody and visitation laws.

Don’t leave your fate in the hands of just any public defender or lawyer. Hire a proven advocate who knows how to beat these charges in New York courts. With the stakes so high, it’s worth investing in the best defense possible.

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