NY Penal Law § 135.50: Custodial interference in the first degree

There are many laws related to protecting children. Some of these laws are specifically designed to protect children as well as adults who are in the lawful custody of an individual or an institution. If you take a person from the lawful custody of another person and refuse to return that person, you have committed a crime. If you do so in a manner that may cause harm to that person or if you remove the person from New York State you could face a charge of custodial interference in the first degree. Under New York Penal Law § 135.50, custodial interference in the first degree is defined as:

1. Taking by a relative a child who is under the age of 16 from the lawful custody with the intent to keep the child away permanently or for a protracted period of time,
2. Taking a person who is incompetent from the lawful custody of another person, or
3. Taking someone who is lawfully in the custody of an institution;

and you also

1. Take the person to another state, or
2. Put the person's health or safety at risk.

Julie had visitation with her 10 year old son 3 days a week, while the child's father has physical custody other 4 days of the week. At the end of her usual visitation Julie attempted to return the child to his father. However, the father was not home and did not respond to repeated phone messages. This was not unusual. So Julie kept the child and continued to try to reach he father. After 2 months Julie moved to another state because she was offered a better paying job. After 3 months the child's father demanded Julie to return the child. Julie refused. The father reported Julie to the police. Julie could be charged with custodial interference as she took the child to another state and refused to return him to his father. However, Julie may also have a valid defense that the child was abandoned by the custodial parent.

1. Custodial interference in the second degree: New York Penal Law § 135.45
2. Kidnapping in the first degree: New York Penal Law § 135.25

Under the custodial interference in the first degree statute it is a defense to such a charge if you take the person from lawful custody because the person has been abandoned or because the person has been subject to abuse or mistreatment.

Because custodial interference in the first degree is a class E felony the maximum possible prison sentence is 4 years. Particularly if you have no prior convictions, the judge may choose to sentence you to a probation term of 5 years instead of sending you to prison.

A person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree:

1. With intent to permanently remove the victim from this state, he removes such person from the state; or

2. Under circumstances which expose the victim to a risk that his safety will be endangered or his health materially impaired.

It shall be an affirmative defense to a prosecution under subdivision one of this section 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.

Being charged with custodial interference is serious. Not only is there a possibility that you could be sent to prison for 4 years, you could also jeopardize your custody arrangement with your child as well as your relationship with other members of your family. 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 custodial interference, 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.