Custodial interference crimes – PL 135.45 and PL 135.50

Custodial interference is a criminal offense under New York law that most often arises in the context of family disputes involving children.

Understanding how New York law defines custodial interference – and seeking legal advice when necessary – is essential, as these cases can carry serious legal consequences.

The NY Penal Law establishes two types of custodial interference: in the second and in the first degree.

When is a person guilty of custodial interference in the second degree?

Custodial interference in the second degree is a class A misdemeanor, which the sentence shall not exceed three hundred sixty-four days.

NY Penal §135.45 establishes two different situations in which this offense may occur.

I. In the first situation, the offense involves a child and requires five cumulative elements:

1.The person must be a relative of a child.

Under Penal Law §135.00 (3), the term “relative” means “a parent, ancestor, brother, sister, uncle, or aunt.”

2. The child must be less than sixteen years old.

The child must be less than sixteen years old at the time of the offense. However, according to NY Penal Law §15.20 (3), knowledge of the child’s age is not an element of the offense. In other words, a mistake as to the child’s age is not a defense.

3.The person is intending to hold such child permanently or for a protracted period.

NY Penal Law Section §135.45 does not define the terms “permanently” and “protracted period.”

Generally, courts have held that those terms are satisfied with the everyday common-sense meaning of a lengthy or an unusually long time under the circumstances. For example, children picked up from school and held for eight days without their custodial parent’s consent constitute this offense.

However, even short-term detention may constitute this offense. The overnight retention of the child, when combined with the other statutory elements, can be sufficient to establish this offense, depending on the circumstances.

With respect to intent, NY Penal Law §15.05 (1) defines intent as when the person’s “conscious objective is to cause such result or to engage in such conduct.” Therefore, the person must have the conscious objective to hold the child permanently or for a protracted period. Accordingly, the non-custodial parent acting in good faith, under certain circumstances, may lack the requisite intent and therefore cannot be found guilty of this offense.

Also, the offense cannot be proven when the information against the person is facially insufficient,  meaning it does not allege the necessary facts to support this element.

4.The person knows that he has no legal right to do so.

A formal custody order is not always required. The identity of the lawful custodian and the person’s knowledge may be established through the surrounding facts and circumstances.

Courts may rely on the method of service, the separate proof of service, the defendant’s admission he knew the order, statements of other persons with firsthand knowledge of this fact, or circumstantial evidence.

5.The person takes or entices such child from his or her lawful custodian.

Although the term “entice” is not defined by the statute, courts require the prosecution to set forth some evidentiary statement showing the manner of enticement and the intent of the defendant to hold the child either permanently or at least for some protracted period.

The term “lawful custodian” has been interpreted by courts as not only including a natural person but also an institution such as a school.

II. The second scenario under NY Penal Law §135.45 applies when the person:

1.”knowing he has no legal right to do so,”

2.”takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution”

When is a person guilty of custodial interference in the first degree?

Custodial interference in the first degree is a class E felony, which the sentence shall not exceed four years.

This offense is considered more serious than custodial interference in the second degree. Under NY Penal Law §135.50, “[a] person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree:

1. With intent to permanently remove the victim from this state, he removes such person from the state; or

2. Under circumstances which expose the victim to a risk that his safety will be endangered or his health materially impaired.”

Courts have found defendants guilty of custodial interference in the first degree in a variety of circumstances. For example:

• A non-custodial parent taking the child abroad with a statement that he will never return and keeping the child for over a year.
• A person intentionally taking his children under the age of sixteen years old to Pakistan for a prolonged period, knowingly depriving his wife of her lawful physical custody. Here, the person’s abduction of his children constitutes an “intentional disobedience or resistance to the lawful process or other mandate of” the court.

However, NY Penal Law §135.50 provides an affirmative defense under subdivision one of this section: “that the victim had been abandoned or that the taking was necessary in an emergency to protect the victim because he has been subjected to or threatened with mistreatment or abuse.”

Matthew Galluzzo is a criminal defense attorney and former Manhattan prosecutor. If you or a loved one have been charged with the crime of custodial interference in the New York City or Westchester area, you should strongly consider contacting him to discuss his engagement.

Tiphaine Marlange contributed to this blog post.