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:

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Legal Scenario: What Would You Do?

Scenario

Your ex-spouse was awarded primary custody of your 8-year-old daughter, but after a scheduled weekend visit you refused to return her because you believed she was being neglected at her mother's home. Now your ex is threatening to press charges and the police showed up at your door asking about the child's whereabouts.

Can I really be charged with a crime for not returning my own child when I genuinely believe she's in danger?

Attorney's Answer

Under New York Penal Law 135.45, custodial interference in the second degree is a Class A misdemeanor that applies when a relative takes or keeps a child from their lawful custodian with the intent to hold the child permanently or for a prolonged period. Even a biological parent can be charged if they violate a court-ordered custody arrangement by refusing to return the child. While Section 135.50 provides an affirmative defense if you reasonably believed the child was in imminent danger of physical harm, you must be able to demonstrate that belief was objectively reasonable — and the proper course of action is to contact child protective services or file an emergency petition in family court. A conviction carries up to one year in jail, so if you're facing these charges, it's critical to document any evidence of neglect and work with an attorney to assert the affirmative defense while pursuing proper legal channels to modify the custody order.

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

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