Child custody can get messy. Holding a child permanently or for a protracted period can result in criminal charges called New York Custodial Interference. Importantly, custodial interference charges apply not only to the interference with the custody of children, but also to the custody of incompetent persons, as well as persons entrusted by authority of law to the custody of another person or institution.

There are two New York Custodial Interference Charges. Specifically, they are:

Custodial Interference in the First Degree requires the commission of Custodial Interference in the Second Degree and the presence of aggravating circumstances. The difference in these charges is explained in detail below. Importantly, both New York Custodial Interference Charges in the First Degree can result in a permanent criminal record and jail time. It is essential that you take these allegations seriously and retain a top rated New York Criminal Defense Attorney to represent you.

New York Custodial Interference in the Second Degree

New York Custodial Interference in the Second Degree is codified in Penal Law Section 135.45. There are two different subsections of this charge. The first refers to the custodial interference of children. The second refers to custodial interference of incompetent persons.

Custodial Interference in the Second Degree – Children

Under New York Penal Law Section 135.45(1), a person is guilty of Custodial Interference in the Second Degree when:

  1. Being a relative of a child less than 16 years old,
  2. Intending to hold such child permanently or for a protracted period, AND
  3. Knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian.

Who is Considered a Relative?

For the purposes of this charge, the definition of a relative comes from New York Penal Law Section 135.00. Under that section, a relative is parent, ancestor, brother, sister, uncle, or aunt.

Custodial Interference in the Second Degree – Incompetent Persons

Under New York Penal Law Section 135.45(2), a person is guilty of Custodial Interference in the Second Degree when:

  1. Knowing that s/he has no legal right to do so,
  2. S/he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution.

Penalties and Sentencing for New York Custodial Interference in the Second Degree

New York Custodial Interference in the Second Degree is a Class “A” Misdemeanor. As such, this charge is punishable by:

  • Up to 1 year in jail;
  • Probation;
  • Conditional Discharge (with conditions like an order of protection, or completion of a parenting class being imposed by the Court);
  • Unconditional discharge (no sentencing conditions imposed by the Court);
  • Time served (even if the time served is just the time spent during arrest processing).

The Court May Also Issue an Order of Protection

Additionally, the Court may issue an order of protection in favor of the child or the incompetent person to ensure that you either:

  1. Have no contact with that individual, OR
  2. Don’t commit any other crimes against that individual.

New York Custodial Interference in the First Degree

The most serious New York Custodial Interference charge is Custodial Interference in the First Degree. This charge is codified in New York Penal Law Section 135.50. Similarly to New York Custodial Interference in the Second Degree, this charge applies to both the custody of children and incompetent individuals.

Under New York Penal Law Section 135.50, a person is guilty of Custodial Interference in the First Degree when:

  1. S/he commits the crime of Custodial Interference in the Second Degree
  2. With intent to permanently remove the victim from this state, he removes such person from the state; OR
  3. Under circumstances which expose the victim to a risk that his safety will be endangered or his health materially impaired.

Penalties and Sentencing for New York Custodial Interference in the First Degree

Under New York Law, Custodial Interference in the First Degree is a Class “E” Non-violent felony. As such, this particular charge is punishable by:

  • An indeterminate sentence up with a maximum of 1 1/3 to 4 years in prison;
  • A determinate sentence of 1 year or less;
  • A split sentence (up to 6 months jail, rest of the time on probation);
  • Probation;
  • A conditional discharge (with conditions imposed by the sentencing court);
  • Unconditional discharge (no conditions imposed by the sentencing court).

Importantly, the Court may issue an order of protection that can prohibit you from having any contact with the individual whose custody you interfered with. This order of protection can also forbid you from committing any further crimes against that individual.

Potential Defenses to New York Custodial Interference Charges

1. No Intent to Hold Child Permanently

Although custody disputes arise frequently, most of them will not lead to criminal charges against you. If the prosecutor cannot establish that you had the intent to hold the child permanently or for an extended period of time beyond a reasonable doubt, you will have a viable defense to the Custodial Interference charge.

2. Lack of Knowledge

Another viable defense to New York Custodial Interference charge is that you lacked the requisite knowledge that you did not have a legal right to take the child or the incompetent person. This may be a viable defense in situations where the child custody or visitation order from the Court is ambiguous. Thus, if the document setting forth the rules regarding custody and visitation is unclear, it would be difficult if not impossible to prove that you committed this act knowingly.

3. Emergency Situation

New York Custodial Interference in the First Degree charge contains an affirmative defense that is applicable to removing the individual out of state (New York Penal Law Section 135.50(1) only). It is an affirmative defense to a prosecution under Penal Law 135.50(1) that the victim had been abandoned or that the taking was necessary in an emergency to protect the victim because he has been subjected to or threatened with mistreatment or abuse.

Importantly, this affirmative defense does not apply to Custodial Interference in the Second Degree Charge or Custodial Interference in the First Degree under Penal Law Section 135.50(2).

Contact New York Custodial Interference Defense Attorneys

If you or your loved one have been charged with Custodial Interference, you need experienced criminal counsel. A conviction for this charge can have adverse consequences on your family case, including the change to your custody and visitation rights. Importantly, these charges can result in an order of protection being issued, thus prohibiting you from committing any crimes against the child or the incompetent person, if not outright prohibiting you from seeing them all together.

Contact us today to schedule your consultation. We are ready to start developing a defense strategy for you.