NY Penal Law § 135.50: Custodial Interference in the First Degree

There are numerous laws established to protect the welfare of children. A number of these laws are specifically designed to protect children as well as certain adults who are in the lawful custody of an individual or an institution. If you remove a person from the lawful custody of another individual or institution and refuse to return that person, you have committed a crime. If, on top of removing them, you do this in a manner that may cause harm to that person or if you remove the person from the State of New York, you could face a charge of custodial interference in the first degree. Under New York Penal Law § 135.50, custodial interference in the first degree is delineated as:

• Taking, by a relative, a minor child who is under the age of 16 from the lawful custody of their parent or guardian with the intention of keeping the child away permanently or for a protracted period of time,
• Taking an individual who is incompetent from the lawful custody of another person, or
• Unlawfully removing someone who is lawfully in the custody of an institution;

and you additionally

• Take the individual to another state, or
• Place the person’s health or safety in peril.

For Example

Jennifer had visitation with her 10 year old son three days a week, while the child’s father has physical custody on the other four days of the week. At the end of her regular visitation, Jennifer attempted to return the child to his father. At the scheduled time, the father was not home and did not respond to repeated phone calls and messages. This was not abnormal. In response, Jennifer kept the child with her and continuously attempted to get in touch with the father. After two months Jennifer relocated to another state, since she was offered a better paying job. After three months, the child’s father materialized, and he demanded Jennifer to return the child to him. Jennifer refused to do so. The father then reported Jennifer to the police. Jennifer could possibly be charged with custodial interference on the basis of the fact that she took the child to another state and then refused to return him to his father on demand. That said, Jennifer may also have a valid defense because, under the circumstances, it can be said that the child was abandoned by the custodial parent.

Offenses that are Related

Kidnapping in the first degree: New York Penal Law § 135.25

Custodial interference in the second degree: New York Penal Law § 135.45

Possible Defenses

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Under the custodial interference in the first degree statute, it is a defense against such a charge if you remove the person from lawful custody due to the fact that the person has been abandoned or because the person has been subjected to abuse or mistreatment.

Legal Scenario: What Would You Do?

Scenario

Your ex-spouse took your 8-year-old daughter during a supervised visitation and fled to another state, refusing to return her despite a family court custody order granting you sole legal and physical custody. You haven't heard from them in over a week, and their family members claim they don't know where they are.

Can my ex-spouse be charged with Custodial Interference in the First Degree under NY Penal Law § 135.50, and what should I do right now to protect my child?

Attorney's Answer

Under NY Penal Law § 135.50, your ex-spouse can be charged with Custodial Interference in the First Degree, a Class E felony, if they knowingly took or kept your child with the intent to permanently remove her from your lawful custody. The fact that they fled to another state and have remained unreachable strengthens the case, as interstate flight demonstrates intent beyond a temporary dispute. You should immediately contact law enforcement to file a report, seek an emergency court order, and request that the National Center for Missing & Exploited Children be notified — the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) can also be invoked to enforce your custody order across state lines. An experienced criminal defense attorney can help coordinate with prosecutors and family court to ensure your child is safely recovered.

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

The Sentence

Since custodial interference in the first degree is categorized as a class E felony, the maximum possible prison sentence you could face is 4 years. In particular, if you have no prior convictions, the judge may decide to sentence you to a probation term of 5 years instead of sending you to serve a prison term.