In the event that a caregiver returns to a parent with another child, he or she is said to have substituted the child, which is a serious offense in New York state.

What the Law Says About Substitution of Children

There are three elements that a prosecutor must prove to convict a person of this charge. First, it must be shown that you were entrusted to take care of someone’s child. Second, it must be shown that you intended to deceive or otherwise mislead the parent when you took the child. Finally, it must be shown that you returned to the parent with a child that was not his or hers.

Examples of Substituting a Child

There were many children in a residential neighborhood, and one parent was responsible for taking everyone’s child home from school once a week. One day, the parent responsible for dropping off the neighborhood children intentionally left a minor at school and instead picked up another young person who looked like that child.

This would be illegal substitution because the person responsible for returning a parent’s son or daughter knew what he or she was doing. However, if the person responsible for bringing the kids home from school simply dropped the wrong child off at a given house, that would not be substitution because there was no intent to deceive.

Defenses to the Charge of Substituting a Child

The job of an attorney in a case involving suspected child substitution would be to cast doubt on any of the elements needed to prove the case against a defendant. Therefore, an attorney may argue that an individual had no intent to deceive a parent when he or she was put into the care of a child. Legal counsel may argue that the caregiver confused an infant child for another who was wearing a similar headband or was in a similar carrier.

It may be possible to show that you were never entrusted to take care of the child in the first place. For example, your attorney may argue that a licensed childcare provider had you watch the child for a few minutes despite a lack of training or experience. If you never agreed to care for the child, that may also show that you couldn’t or shouldn’t have been trusted to care for it.

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Finally, it may be possible to claim that the child looked different despite actually being the same child. While gone, that child could have given him or herself a haircut, got a temporary tattoo or took other measures to alter his or her appearance significantly. This may be enough to win a case at trial or have it thrown out since it was a misunderstanding.

Legal Scenario: What Would You Do?

Scenario

You work as a nanny for a family and accidentally brought the wrong infant home from a playgroup, only realizing the mix-up hours later. The parents are furious and threatening to press charges, claiming you intentionally swapped their child.

Can I really be charged with substitution of children under New York law if it was an honest mistake?

Attorney's Answer

Under New York Penal Law § 135.55, substitution of children requires the prosecution to prove three key elements: that you were entrusted with the care of a child, that you knowingly substituted or returned a different child, and that you did so with intent to deceive the parent or guardian. If the mix-up was genuinely accidental and you had no intent to deceive, this is a strong defense against the charge. However, prosecutors may look at circumstantial evidence — such as how long the substitution went unnoticed and your actions once you discovered the error — to argue intent. You should document everything about the incident immediately and avoid making any statements to law enforcement without an attorney present.

This is general information only. Contact us for advice specific to your situation.

Those who are facing a charge of child substitution may go to jail or prison upon being convicted. Therefore, it is important that defendants know where to turn for legal help. Having qualified counsel during a trial may increase the odds of winning the case or otherwise obtaining the best possible outcome in the matter. An attorney may be able to advise an individual as to his or her rights during the legal process including the right not to say anything to authorities.