New York Penal Law § 135.45 – Custodial Interference in the Second Degree

Custodial Interference in the Second Degree is a crime designed to prevent parents and other relatives from disregarding the custody rights of a child's parent or guardian. Custodial Interference in the 2nd Degree is a Class A misdemeanor.

Before a judge or jury can convict anyone of Custodial Interference in the Second Degree, the government must prove each element of the offense beyond a reasonable doubt. The elements of Custodial Interference in the Second Degree are:

• The defendant took or enticed a child away from their parent, guardian or other lawful custodian;
• The defendant knew they did not have a legal right to take the child;
• The defendant intended to hold the child permanently or for an extended period;
• The child was less than 16 years old; and
• The defendant was a relative of the child.

Custodial interference is a rather specific crime, and most of these cases share some basic similarities. For example, below are a few of the most common scenarios where these cases arise:

• A father without primary custody of a 12-year-old convinces the child to leave his mother's home to come to live with him;
• A mother who just lost a custody battle takes her five-year-old to live with her family in another state; and
• Grandparents concerned about the well-being of their grandchild take the child to live with them.

Often, prosecutors bring Custodial Interference in the Second Degree charges along with one or more of the following:

• Custodial Interference in the First Degree – N.Y. Penal Law § 135.50
• Unlawful Imprisonment in the First Degree – N.Y. Penal Law § 135.10
• Unlawful Imprisonment in the Second Degree – N.Y. Penal Law § 135.05
• Kidnapping in the Second Degree – N.Y. Penal Law § 135.20
• Kidnapping in the First Degree – N.Y. Penal Law § 135.25
• Substitution of Children - N.Y. Penal Law § 135.55

While being a child's parent may be a defense to kidnapping, that is only the case where the parent's sole intent was to assume control over the child. Thus, if prosecutors believe that a parent committed an abduction for the purpose of terrorizing the child's other parent, they may pursue kidnapping charges.

There are several defenses to Custodial Interference in the Second Degree. A successful defense may reduce your sentencing exposure, result in the prosecution withdrawing the case against you, or cause the jury to return a "not guilty" verdict.

The most common defenses include the following:

• Your actions were based on an honest mistake regarding your custody rights;
• The child was 17 or older;
• You did not intend to keep the child for an extended period of time; and
• The child came to you without any prompting.

Technically, proving that you are not related to the child is a defense to Custodial Interference. However, practically speaking, this would open you up to the possibility of being charged with kidnapping or unlawful imprisonment, which are more serious crimes.

Custodial Interference in the Second Degree is a Class A misdemeanor. Class A misdemeanors are punishable by a term of up to 364 days imprisonment as well as a fine of up to $1,000.

If you were recently charged with Custodial Interference in the Second Degree, a conviction could not only land you in jail but may also impact your future custody rights. At the law firm of Tilem & Associates, P.C., our dedicated team of New York criminal defense lawyers has extensive experience protecting the interests of parents, grandparents and other family members facing these serious allegations. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.