What is Custodial interference?

Custodial interference refers to an individual who is a relative of a child under 16 years of age, knowing he or she has no legal right to the child, takes the child from his or her legal custodian with the intent of keeping the child for a long period of time, or permanently.

Criminal custodial interference also includes such a person taking from legal custody any incompetent person or a person who has been legally placed in the custody of another person of an institution.

What law defines Custodial interference in New York?

Under New York State law, Article 135 of the Penal Code defines custodial interference.

Section 135.50 lays out custodial interference in the first degree, a class E felony, as the taking, without permission, of child under 16 years of age from his or her legal guardian, with the intention of keeping that child for a long period of time or permanently, or with the intention of taking the child from the state and carrying out such intention, or under conditions which cause the child to be exposed to risk to his mental or physical safety.

Custodial Interference in the First Degree

Taking a closer look at Section 135.50 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.

• Section 135.50 Custodial interference in the first degree.

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 for an emergency to protect the victim because he has been subjected to or threatened with mistreatment or abuse.

Custodial interference in the first degree is a Class E felony.

Elements 

• The first element required to provide custodial interference in the first degree is committing the crime of custodial interference in the second degree. This cross-reference refers to Section 135.45, which defines custodial interference in the second degree as a relative taking a child under 16 years of age from his or her legal guardian, knowing that he or she has no legal right to the child and with the intention of keeping the child for a long period of time or permanently.

It also can be taking an incompetent person or another person legally placed in the care of another person or institution, from that person or institution, knowing that he or she had no legal right to do so.

• Next, the provision requires that the defendant have the intent to permanently remove the child from the state and completes such removal. Note that intent must be proven under this provision. Intent can be difficult to prove, but the defendant’s actions in this scenario may be sufficient to establish the requisite intent.

Also, note that the child must be removed from the state. If the child is taken but is still located within the state, the defendant may escape liability under this statute.

In addition, the law requires that the taking of the child occur under conditions which put the child’s physical or mental health at risk. Consider the emphasis on the surroundings the child is exposed to. If the child is taken but spends the day at a favorite amusement park, there may be less chance of conviction than if the child were taken and locked in a small cage without food or water.

The statute further provides an affirmative defense that relieves a defendant from culpability if the taken child was abandoned prior to the taking or that the child was taken as an emergency measure because he or she was being abused.

Custodial Interference in the Second Degree

Section 135.45 defines custodial interference in the second degree, a class A misdemeanor, as a relative’s taking of a child under 16 years of age, with the relative having the intention to keep that child for a long period of time, or even permanently, and knowing that he or she had no legal right to the child.

This law also includes a defendant taking an incompetent person or person legally placed in the custody of another person or institution, knowing he or she had no legal right to the taken person. Taking a closer look at Section 135.45 details the elements of the defined crime must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.

• Section 135.45 Custodial interference in the second degree.

A person is guilty of custodial interference in the second degree when:

1. Being a relative of a child less than sixteen years old, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; or
2. Knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution.

Custodial interference in the second degree is a class A misdemeanor.

Elements

• The first element above requires that the defendant be a relative of the taken child. If the child is taken by someone who is not a relative, this does not mean that taking someone’s child is okay. It would likely fall under another offense, such as kidnapping.

The provision also requires that the child is under 16 years of age. If the child is over 16 years of age, the child may be deemed as able to make a choice to go with the relative. Further, the law requires that the defendant have the intent to keep the child for a long period of time or permanently.

If the defendant had the intention to only take the child to his or her favorite amusement park for the day, this might be miscommunication between the defendant and the child’s legal guardian, but likely not custodial interference.

• The statute also requires that the defendant know that he or she has no legal right to the child. If the child is taken by a favorite aunt who believes that she has the right to bring the child to stay with her at her summer cottage, liability may be eliminated or lessened here as the aunt did not know that she did not have the legal right to take the child in this manner.

In addition, the defendant must take the child from his or her lawful custodian. If the child is taken from a stranger, or the neighbor’s house, culpability may be eliminated or lessened because neither the stranger nor the neighbor is the child’s legal guardian.

In the case of taking a person from the custody of a person of the institution, the law requires that the defendant knows they have no legal right to take the person. He or she must also take a person who is considered legally incompetent or legally placed under the custody of another person or institution.

Individuals placed in such custody or deemed legally incompetent are given these labels and living conditions as the result of various ailments that may prevent them from safely living independently or making sound decisions. If the defendant takes a person who is legally competent, this act may not be benign, but it will likely be subject to criminality under a different law.

Substitution of Children

Section 135.55 defines substitution of children as a person who has had a child under one year of age temporarily placed in their care, with intent to deceive the child’s legal guardian, returns the legal custodian a different child.

Taking a closer look at Section 135.55 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.

• Section 135.55 Substitution of children.

A person is guilty of the substitution of children when, having been temporarily entrusted with a child less than one-year-old and intending to deceive a parent, guardian or other lawful custodians of such child, he substitutes, produces or returns to such parent, guardian or custodian a child other than the one entrusted. Substitution of children is a class E felony.

Elements

• The first element requires that the defendant has been temporarily put in charge of a child under one year of age. If the child is over one year of age, this act is not benign but likely dealt with under another provision. In addition, if the defendant has not been temporarily put in charge of the child, his or her actions are unlikely to be considered lawful but subject to punishment via another statute.
• The law also requires that the defendant have the intent to deceive the child’s legal guardian. If the individual had no such intent and their conduct was a mistake or misidentification of a child, that may speak to irresponsibility but likely will not lead to a conviction under this law.
• Finally, the provision states that the charged individual must return to the child’s legal guardian a different child than they were entrusted with. Clearly, if the correct child is returned, criminal liability is unlikely under this provision.     

What are some related crimes?

In some situations, you may be charged with committing a crime that is similar to the charges above. These charges may stand alone, or be in addition to charges for the primary crime. Charges for additional crimes are sometimes dependent on your conduct, as the number and severity of crimes may be dependent on law enforcement’s discretion.

Coercion in the First Degree

Section 135.65 lays out the legal definition, and elements required for conviction, of coercion in the first degree, a Class D felony. Let’s consider the text of the law, its precise language, and what it means.

• Section 135.65 Coercion in the first degree.

A person is guilty of coercion in the first degree when he or she commits the crime of coercion in the second degree, and when:

1. He or she commits such crime by instilling in the victim a fear that he or she will cause physical injury to a person or cause damage to property; or
2. He or she thereby compels or induces the victim to:
3. Commit or attempt to commit a felony; or
4. Cause or attempt to cause physical injury to a person; or
5. Violate his or her duty as a public servant.

Coercion in the first degree is a class D felony.

Elements

• The above provision first requires that the defendant has committed coercion in the second degree. Further, the individual must have committed this crime by creating fear in the victim that the defendant will harm the individual or their property. If the defendant has not created any fear in the victim, there is likely little to no culpability under this provision.

Alternatively, the defendant must have caused the victim to commit or attempt to commit a felony, physical injury to a person, or violate his or her duty as a public servant. If the defendant does not cause the victim to do any of the above, there is likely little to no liability for the defendant.

What are the statutory penalties if you are convicted of this crime? 

Reading the statutes above, note that each of these offenses is classified by their severity. Felony charges are generally more serious than misdemeanor charges, and a Class A charge is generally more serious than a Class B charge.

New York’s sentencing statutes spell out the possible sentence for each category, which ranges from no time in prison to life sentences.

When judges determine to sentence, certain factors may be considered, including prior convictions, persistent offender status, and youthful offender status.

The sentence for a Class D non-violent felony varies from no prison time, being put on probation, or a prison term of one to seven years. A Class E violent or non-violent felony carries sentencing ranging from a range of no prison time to four years in prison. A Class A misdemeanor is defined as an offense other than a traffic violation. Sentencing can be no prison or time in prison, but the prison term is limited to 15 days to one year.

What are some of the additional consequences of being convicted? 

Regardless of the sentence given by a court, a conviction may cost additional consequences. Professional consequences can include loss of licenses, reputational damage, and financial costs to associated companies. Conviction may also make finding a job or housing more difficult, and require a fight in court that may be costly, both personally and financially.

Convictions may appear in all manner of routine background checks for things as innocuous as opening a bank account or credit card. It’s essential to take all possible actions to avoid a conviction to protect your future opportunities, as well as your family’s.

If you think about how many times you fill out forms that ask whether you’ve ever – ever  – been convicted of a felony, the import of doing all that you possibly can to avoid such a conviction becomes clear; In addition, felony convictions can have disruptive effects on your voting rights.

Additional circumstances

Conviction of a coercion crime may carry additional circumstances as this may be prohibitive of gaining work in any position of caring for another or being placed in positions of personal trust.  In addition, a conviction of this type may preclude an individual from obtaining employment in any kind of elder care position of caretaker of individuals in vulnerable circumstances.

What are some defenses to custodial interference in New York? 

There are powerful tools you and your attorney can use to fight charges in court. An affirmative defense is spelled out in the criminal statute. To successfully win with an affirmative defense, the defendant has the burden to prove that the defense is available to them, by a preponderance of the evidence.

When non-affirmative defenses are raised, the burden is on the prosecution to prove beyond a reasonable doubt that the defense does not apply to the defendant.

• Defenses that may be available to charges of custodial interference include justification, which is essentially a claim that the custodial interference was necessary because an emergency situation developed such that the rates were justified to prevent immediate public or private injury, which emergency developed by no fault of the defendant. \

The justification defense reflects the recognition that there are times when circumstances emerge to create a situation in which a defendant may not realistically have full control over their options.

• Infancy may be another available defense. This defense is available to those under 18 years of age as a means to potentially shield them from criminal liability. This defense depends heavily on the circumstances of the case and specific facts as minors are not automatically relieved of responsibility for their actions.

This defense reflects the general policy that minors may lack the understanding to know how their actions are wrong, or illegal. It also considers that courts may take a different approach to minors so as to minimize damage to their future options if the crime is sufficiently minor.

• Duress may be an effective defense as well. The presence of duress may remove responsibility for the commission of a crime as the defendant’s actions may not be their own.

Why hire an attorney?

In terms of mounting an effective defense, note that these statutes require that the defendant knew about the problematic actions. Proving this can be difficult as it can be seen as trying to “read minds.” While the defendant’s knowing may be explicitly stated or otherwise determined, it can be quite elusive to establish without an explicit statement by the defendant.

This may be a defense angle worth raising with your attorney and exploring how you can prevent prosecutors from proving this requirement. An experienced and effective criminal defense attorney should be able to work with you on establishing doubt regarding this element.

Note that Section 135.50., the charge of custodial interference in the first degree, offers an affirmative defense which provides that liability is excused if the taking was of an abandoned victim, or that the taking was required to prevent harm to the victim from abuse.

Help is Available 

Facing any of the charges discussed above requires the assistance of a knowledgeable attorney who can help you navigate the various processes involved in the legal process. It’s crucial to engage an experienced criminal defense lawyer as soon as possible to ensure your rights are protected, and your case receives the best outcome possible.

In addition to having knowledge of the law itself, lawyers are often familiar with judges in their area and know their varying attitudes and demeanors. This can help the lawyer craft their strategy in such a way that would most appeal to the assigned judge’s personality.

Eliminating or minimizing any charges or sentencing is possible and well worth placing the call. Contact us to review your situation with an experienced legal professional who can help you take charge of your situation and guide your way forward.