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NY Penal Law § 135.45: Custodial Interference in the Second Degree

June 28, 2020 Federal Criminal Attorneys

Child custody cases can often become rather contentious. Ultimately, the judge must render the decision as to custody and visitation between the parents. Nonetheless, there are times when one of the parents disagrees with the decision and chooses to take matters into his or her own hands. If a parent chooses not to follow the custody arrangement by refusing to allow the other parent to have access to the child for a scheduled visit or by failing to return a home child after a scheduled visit, that parent could face a charge of custodial interference.  You could be charged with custodial interference in the second degree under New York Penal Law § 135.45  if you remove a child from his or her legal custodian and you:


  • Are related to a child who is younger than 16 years of age,
  • Have the intention of keeping the child permanently or for a prolonged period of time, and
  • Have no legal right to have the child in your possession.
  • Or you take from lawful custody an individual who is incompetent or a person who has been lawfully entrusted to another individual or an institution.


An Example

Per a court order, Clifford has scheduled visitation with his 4 year old child three days every week, while his ex-wife has custody during the other four days of the week. When the time came for Clifford to return the child to his ex-wife’s home, the child begged to remain with her father an extra day. Clifford caved in to his child’s plea. His ex-wife demanded that the child be returned to her right away. Clifford refused to do so. He kept the child with him one extra day and then returned him to his ex-wife. In this case, Clifford would not be convicted of custodial interference in the second degree due to the fact that he did not keep the child for a protracted period. One day is a not long enough period of time to cause Clifford’s actions to amount to custodial interference as defined by the statute.


Offenses that are Related

Custodial interference in the first degree: New York Penal Law § 135.50


Possible Defenses

If the individual from whom the child was taken did not have lawful custody of the child, you could not be prosecuted for the crime of custodial interference. Alternatively, you may also have a defense against this crime if you reasonably believed that, by violating a custody order, you were protecting the child from physical or emotional harm.


The Sentence

Custodial interference in the second degree is categorized as a class A misdemeanor. The maximum possible jail sentence you could face is 1 year. The judge might decide to sentence you to a term of probation instead of jail time. The probation term you could get would be 3 years.



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