25 Sep 23

New York Penal Law 135.45 Custodial Interference in the Second Degree

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Last Updated on: 29th September 2023, 07:02 am


New York Penal Law 135.45 Custodial Interference in the Second Degree

Child custody cases can get real messy, ya know? Judges make the final call on custody and visitation but sometimes folks don’t want to follow the rules. That’s where New York Penal Law 135.45 comes in – it’s about custodial interference in the second degree.

Basically, you could get charged with this crime if you take a kid from their legal guardian and:

  • You’re related to the kid who’s under 16
  • You plan on keeping them long-term without the right to do that

Or if you take someone incompetent or someone entrusted to another person/place when you shouldn’t.

The Elements of the Crime

There’s a few specific elements prosecutors gotta prove for a custodial interference in the second degree charge:

  1. You don’t have lawful custody of the child
  2. You’re related to the child who is under 16 years old
  3. You intended to keep the child permanently or for a long time
  4. You had no legal right to take and keep the child

If you’re not related to the child, they gotta prove:

  1. You took someone incompetent or entrusted to another person/place
  2. You knew you didn’t have the legal right to do that

It’s a Class A misdemeanor so up to a year in jail if convicted. Probation is possible too – up to 3 years.

Real World Examples

Let’s look at some real cases. In one, a dad didn’t return his son after a visitation – clear violation. He got 6 months jail.[1] Another dad took his baby daughter across state lines during a custody battle. He pled guilty to custodial interference in the second degree. Got 5 years probation.[2]

What about the other way? In a case where the mom kept her toddler past her custody time, the court said she had a valid defense. The child was left alone by dad so she acted in emergency to protect the kid’s safety.[3]


There are some defenses that could beat the charge:

  • You had lawful custody/right to keep the child
  • It was an emergency and you acted to protect the child’s safety
  • You reasonably believed you had custody rights
  • The child consented to leaving if they are mature enough
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Consent can be iffy tho. The court weighs the child’s age, intelligence, and maturity.


Like we said earlier, custodial interference in the second degree is a Class A misdemeanor. That means up to 1 year in jail or 3 years probation if convicted. Fines up to $1,000 too. It will also give you a criminal record that could really mess with child custody cases down the line.

How a Lawyer Can Help

Having a good lawyer in your corner is so key. They can investigate the facts and fight to get charges reduced or dismissed. If it goes to trial, they’ll challenge the prosecution’s case. They know how to argue custody rights and defenses like emergency and consent. And if convicted, they’ll fight for probation instead of jail.

The lawyer can also work to negotiate visitation if that’s part of the dispute. Getting visits and calls with your kid goes a long way. Bottom line – don’t go it alone here. Hire an experienced criminal defense attorney.

Custodial interference cases can get messy real fast. Folks want to see their kids and sometimes take desperate measures. But taking or keeping a child without the right to do so is a crime in New York. Protect yourself and your rights by getting a lawyer on your side.


[1] People v. Smith

[2] Times Union, “Dad admits taking baby in custody fight”

[3] People v. Stockton