Because child custody cases can be contentious and high in conflict, New York has enacted laws to deter persons from interfering with child custody situations. In some of these situations, a person may be charged with a crime called custodial interference. New York Penal Law § 135.45 sets forth the actions that may constitute custodial interference in the second degree.
The elements of custodial interference in the second degree
According to New York Penal Law § 135.45, you may be charged with custodial interference in the second degree if you wrongfully take a child from their legal custodian and:
1) Are a relative of the child and the child is less than 16 years old,
2) You intend to keep the child permanently or for a protracted period of time, and
3) You have no legal right to take these actions.
In addition, in situations where the lawful custodian of a person has been deemed incompetent or has otherwise been lawfully entrusted to the custody of another person, you may also be charged with custodial interference in the second degree if you take that person from their custodian.
Applicable defenses to custodial interference in the second degree
If you have been charged with custodial interference in the second degree, there may be legal defenses available to rebut the charge filed against you. For example, if the person from whom the child was taken was not in lawful custody of the child, you cannot be found guilty of custodial interference. Also, if you reasonably believed your actions were done to protect the child from physical or emotional harm, then you may have a defense to the charge. In addition, the prosecution must be able to establish that you acted with the required legal intent.
There may also be defenses related to your constitutional rights, which could result in exclusion of evidence and dismissal of the charges in some circumstances. For example, if the police obtained evidence that is used against you in the case in violation of your fourth amendment rights, then that evidence cannot be considered by the court.
What are the potential penalties?
If you are convicted of custodial interference in the second degree, it is a class A misdemeanor which will show up on your criminal record. The maximum possible term of incarceration is one year. However, you may have your jail sentence suspended and be placed on probation for up to three years.
What should you do if charged with custodial interference in the second degree?
If you are being investigated for custodial interference in the second degree or have been charged with that crime, you should contact a attorney as soon as possible. You are entitled to have legal representation throughout all stages of the case, including during any investigation. An attorney will help you understand your rights and how to invoke them. If charges have been filed, an attorney will review your case and identify any defenses that may be raised. If there are defenses available to your situation, an attorney will Will file the necessary motions and make the appropriate objections to ensure that your defenses are heard.
During the time that the case is being prosecuted, an attorney will negotiate with the prosecution to try and achieve a fair result. If negotiations are unsuccessful, an attorney can represent you at trial and argue on your behalf. At trial, an attorney can cross examine the prosecution’s witnesses, present rebuttal evidence, and make oral argument to support a finding of not guilty.
If you are facing charges for custodial interference in the second degree, contact a criminal defense attorney from our firm as soon as possible. We will provide legal advice specific to your situation to help you understand your options. If we represent you, we will advocate on your behalf and strive to achieve the best possible outcome. Contact us today to schedule a consultation appointment.