Whenever children are involved in divorce proceedings and the parent’s custodial rights are in question, the case can get quite difficult for the affected parents to work out on their own. It is at this point that a judge might have to get involved and make a determination of what is in the best interests of the child or children. Often times one or both parents are not happy with the results, and sometimes a parent may decide to take matters into their own hands. If a parent fails to follow the court ordered custodial arrangements, that parent could be charged with custodial interference. It is important to understand what New York Penal Code 135.45 states with regard to custodial interference.
New York Penal Code 135.45 Broken Down
A person is guilty of custodial interference in the second degree when:
– the child is under 16 years old and a relative takes the child away from the legal custodian with the intention of keeping the child for an extended period of time knowing he has no legal right to do so and the legal custodian has not given consent
– knowing he has no legal right to do so, the relative takes any incompetent person away from the person or institution where the law has entrusted them without the legal consent of the custodial person or institution.
The term “relative” can mean a parent, grandparent, brother, sister, aunt, or uncle.
The term “legal consent” applies to the person who is the legal custodian, not the child or incompetent individual. It does not matter if the child herself wants to go. The court has determined what is in the best interests of the child and any relative who does not follow the court orders can be held in violation and charged with a crime.
Violation of Penal Code 135.45 is considered a class A misdemeanor. Conviction of this violation could include prison time of one year and/or probation of up to 3 years.
Father A was awarded primary custody with Mother A being awarded visitation every other weekend and some holidays. While the children were visiting Mother A, they decided they wanted to stay with her instead of their dad, and the Mother agreed to let the children stay indefinitely. This would be a violation of Penal Code 135.45.
An example of a defense would be if Mother A took the children for the weekend and her car broke down so she was unable to return the children on the day they were due back. She brought them home a week later when her car was fixed. This does not meet the criteria for an extended period of time.
Another defense would be if the relative took the child away from someone who was not the custodial parent, such as the grandparents. Finally, if you believe that the child was in physical or emotional harm staying with the custodial parent, that could be a defense as well.
Violating a court ordered custodial plan is considered custodial interference. If you are charged with violating code 135, you should contact a good New York defense attorney as soon as possible to help you defend your decisions. While the court makes a good faith effort to do the best thing for the children in a custody battle, sometimes it doesn’t get it right. An experienced defense attorney will be able to look at your individual case and be able to defend you against the charges of custodial interference.