Last Updated on: 26th July 2023, 10:54 pm

An Overview of New York Penal Law § 135.45 – Custodial Interference in the Second Degree

Child custody battles can become intensely bitter and drive parents to make poor decisions violating the law. In New York, taking or harboring a child in defiance of an existing custody order is prosecuted under Penal Law § 135.45 as custodial interference in the second degree, a class A misdemeanor.

The Elements of Custodial Interference in the Second Degree

For a prosecutor to obtain a conviction under PL § 135.45, they must establish these elements beyond a reasonable doubt:

– A custody order for a child under 16 was in place issued by a court.
– The defendant was aware of this custody order.
– The defendant knowingly took, enticed away, kept, or harbored the child.
– They did so in violation of the order outside the U.S.

The child does not need to be taken completely away. Just detaining them past the court-ordered custody time is enough.

Penalties Under § 135.45

Since custodial interference in the second degree is a class A misdemeanor in New York, potential penalties can include:

– Up to 1 year in jail
– Probation up to 3 years
– Fines up to $1,000

Probation with court-ordered counseling is common for first-time offenders. But jail time is possible for repeat violations or interfering with visitation rights.

Defenses to Custodial Interference

There are scenarios where taking a child will not lead to criminal liability. Common defenses include:

– No Valid Court Order – If a custody case is still pending and no order was issued yet, interference charges do not apply.

– Order Not Violated – Misunderstandings happen, and the order’s terms may have been followed.

– Fleeing Abuse – Removing a child from immediate danger of abuse may be excusable even if an order is violated.

– Consent – If the other parent agrees to a different custody arrangement, even temporarily, it may not qualify as interference.

– False Accusations – Bitter former partners sometimes make false claims about child abduction.

Notable NY Custodial Interference Prosecutions

Examining how this statute has been applied in real cases can provide further clarity:

The Summer Vacation Detention

A father refused to return his son after a summer visitation, leading to custodial interference charges when the mother contacted police. He admitted keeping their son beyond the period allotted in their formal custody agreement.

The International Abduction

A mother lost custody but fled with her daughter to Poland without the father’s consent. An international warrant was issued, and she was indicted for custodial interference upon returning to New York years later.

The Hidden Toddler

After a father was granted full custody, the mother refused to reveal where their toddler was. She was jailed for custodial interference for violating the court order and hiding the boy’s location.

Frequently Asked Questions About § 135.45

Those facing prosecution often have these common questions:

What If I Had Good Intentions?

The prosecution only needs to prove knowing violation of a custody order, not malicious intent. Good intentions are not a defense.

Can I Lose Custody Rights?

Yes, a conviction can be grounds for awarding the other parent full legal and physical custody.

What If I Was Protecting My Child?

Will There Be a Criminal Record?

Yes, custodial interference creates a permanent criminal record as a class A misdemeanor conviction.

If you are being investigated or charged with custodial interference, having an experienced criminal defense lawyer is critical. Do not wait to call the Spodek Law Group at 212-300-5196. schedule your free case evaluation. As former prosecutors, our attorneys have deep insight into convincing prosecutors to drop these charges. We know how to strategically fight accusations of violating custody orders and keep clients out of jail. Let our firm defend your rights and freedom.