NY Penal Law § 135.45: Custodial interference in the second degree

Child custody cases sometimes get quite contentious. Ultimately the judge makes the decision as to custody and visitation. However, sometimes one of the parents disagrees with the decision and takes matters into his or her own hands. If a parent fails to follow custody arrangement by refusing to allow the other parent to have custody of the child for a scheduled visit or by failing to return a child after visitation, that parent could face a charge of custodial interference. Under New York Penal Law § 135.45, you could be charged with custodial interference in the second degree if you take a child from his or her legal custodian and you:

1. Are a relative of a child who is less than 16 years old,
2. Intend to keep the child permanently or for a protracted period of time, and
3. Have no legal right to do so.

Or you take from lawful custody a person who is incompetent or a person who has been lawfully entrusted to another person or an institution.

Per a court order Benjamin has visitation with his 4 year old child 3 days each week, while his ex-wife has custody during the other 4 days of the week. When it was time for Benjamin to return the child to his ex-wife, the child begged to stay an extra day. Benjamin acquiesced. His ex-wife demanded that the child be returned immediately. Benjamin refused. He kept the child one extra day and then returned him to his ex-wife. Benjamin would not be convicted of custodial interference in the second degree because he did not keep the child for a protracted period. One day is not enough to cause Benjamin's actions to amount to custodial interference as defined by the statute.

1. Custodial interference in the first degree: New York Penal Law § 135.50

If the person from whom the child was taken did not have lawful custody of the child you would not be guilty of custodial interference. In addition, you may also have a defense if you reasonably believed that you by violating a custody order were protecting the child from physical or emotional harm.

Custodial interference in the second degree is a class A misdemeanor. The maximum possible jail sentence is 1 year. The judge may decide to sentence you to probation instead of jail. The probation term would be 3 years.

A person is guilty of custodial interference in the second degree when:

1. Being a relative of a child less than sixteen years old, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; or

2. Knowing that he has no legal right to do so, 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.

Being arrested for custodial interference in the second degree is serious. If you are convicted in addition to being sent to prison many other aspects of your life may be damaged including relationships with other family members. However, there may be defenses to a charge of custodial interference the second degree that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for custodial interference is important to immediately contact someone understands the New York criminal system. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with kidnapping, assault, stalking, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.