New York Penal Law § 135.50 – Custodial Interference in the First Degree

Custodial Interference in the First Degree is a New York crime that prohibits individuals from intentionally removing a child or incompetent person from their lawful custodian. The offense is more serious than Custodial Interference in the Second Degree as it involves an additional requirement that the prosecution establishes the defendant either intended to remove the victim from the state permanently or exposed them to a risk to their health or safety. Custodial Interference in the First Degree is a Class A misdemeanor.

All criminal offenses are made up of certain elements. Before a judge or jury can convict anyone of Custodial Interference in the First Degree, the government must prove each element of the offense beyond a reasonable doubt.

The elements of Custodial Interference in the First Degree are:

1. The defendant took or enticed a child or incompetent person from their lawful guardian;
2. The defendant knew they did not have the legal right to do so;
3. The defendant intended to hold the victim permanently or for a prolonged period

And either;

1. The defendant was a relative of the child victim, who was less than 16; and
2. The defendant actually removed the child from the state.

Or,

1. The defendant exposed the child to a risk to their health or safety; and
2. The defendant was a relative of the child victim, who was less than 16.

Custodial Interference in the First Degree also applies to any person entrusted into the custody of another. The only difference is that there is no requirement related to the victim’s age.

Examples of Custodial Interference in the First Degree include the following:

1. A father without primary custody of his children takes them to another state with the intent to keep them there permanently; and
2. A mother without primary custody picks her children up from school unexpectedly and, in doing so, puts them at risk.

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

1. Custodial Interference in the Second Degree – N.Y. Penal Law § 135.45
2. Unlawful Imprisonment in the First Degree – N.Y. Penal Law § 135.10
3. Unlawful Imprisonment in the Second Degree – N.Y. Penal Law § 135.05
4. Kidnapping in the Second Degree – N.Y. Penal Law § 135.20
5. Kidnapping in the First Degree – N.Y. Penal Law § 135.25
6. Substitution of Children - N.Y. Penal Law § 135.55

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 give the jury reason to return a “not guilty” verdict.

The most common defenses include the following:

• Your thought you had a legal right to assume custody of the victim;
• The child was under 16;
• You did not intend to keep the child for an extended period of time;
• You did not intend to keep the child out of the state permanently;
• You did not subject the child to a risk to their health or safety;
• The child came to you without any prompting.

While proving that you were not related to the child victim may be a defense to Custodial Interference, practically speaking, proving you are unrelated to the victim could result in the prosecution pursuing kidnapping charges.

Custodial Interference in the First Degree is a Class E felony. In New York, Class E felonies carry a maximum sentence of up to four years in jail and a fine of up to $5,000. Additionally, although not a criminal punishment, being found guilty of Custodial Interference in the First Degree can impact your custody rights.

If you were charged with Custodial Interference in the First Degree, it is imperative that you work with a dedicated New York criminal defense attorney who has specific experience handling these complex and high-stakes cases. At Tilem & Associates, P.C., our custodial interference lawyers have decades of experience and have handled countless cases involving these charges, and know what it takes to ensure your case ends in the best result possible. 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.