New York Penal Law 135.50: Custodial interference in the first degree
There are many laws, in the United States, that relate to protecting children. Some of these laws are designed to protect adults and children who are in the lawful custody of an institution or an individual. If you take one person who is lawfully in the custody of the other person, you may face conviction because you have committed a crime. If you go ahead and treat that person in a manner that suggests you want to cause harm to that person or remove them from New York, you are likely to face a first-degree custodial interference charge. Under the New York Penal Code, first-degree custodial interference charge is defined as:
1. Taking someone who is in the custody of an institution as stated in the law.
2. Taking an incompetent person from the care of an individual or an institution.
3. Taking a relative who has a 16-year-old child and below from their custody with the intention to have the child kept away for a protracted period or permanently.
And you also
1. Take that child or person to another state, or
2. Put that person’s health at the risk of disease.
Julie was entitled to a visitation with her 10-year-old son for two days a week. While the father of the child was issued a lawful physical custody of the child for four days a week, the mother was given three days a week. However, the father was not at home when she arrived. Because of this, he did not respond to the sent phone messages. For her, the action of ignoring these messages was not unusual. For her, she decided to keep the child because her father was not there. For two months now, Julie decided to move to another state because she found a better job at that place. For three months now, the father has been pleading with Julie to return the child to him. However, his actions have never bore any fruits. Because of her repeated actions, he decided to report the matter to the police. Julie could face prosecution for the first-degree custodial interference charge as she took the child to another state and decided not to return the child to the father as stated by the court order. However, Julie may have a valid defense that her child was abandoned by the father.
1. First-degree kidnapping charge: New York penal law 135:25
2. Second-degree custodial interference: New York Penal Law 135:45
Under the first-degree custodial interference statute, it is a very wrong action to take a person who is lawfully in the custody of another person. However, you can have a valid defense if that person has been abandoned or is subjected to mistreatment or abuse.
Because first-degree custodial interference is a Class E felony, a four-year prison term is the longest time you can stay in the correctional department. If you have no previous convictions, the judge may choose to give you a five-year probation term in the correctional facilities instead of the actual prison term.
The nyc criminal attorneys Law Firm
It is a serious offense to be charged with the first-degree custodial interference. For this reason, you are likely to face a four-year prison term. In this case, your custody agreement could be jeopardized with your child and the relationship you have with your friends and family. Whenever you are charged with such an offense, you can consider calling an experienced legal representative you back you up. The staff at NYC Criminal Attorneys Law Firm is extremely experienced in representing clients in criminal courts. For this reason, contact them for a free consultation session.
New York Penal Law 135.45: Custodial interference in the second degree
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 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 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 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.