In New York, the penal code outlines specific laws that are intended to protect children and adults who are in need of guardianship. In these cases, the individual is the legal responsibility of another adult individual or of an institution. Mentally challenged adults may not be able to function well in society, so it becomes necessary to assign guardianship just as the law does for minor children. In these situations, taking the child or adult from their guardian is considered a crime.
The Definition of First Degree Custodial Interference
Like many crimes, there are varying degrees in relation to a custodial interference crime. This article focuses on custodial interference in the first degree as outlined in New York Penal Law § 135.50. To be charged with this crime, you must have taken the child or adult away from their legal custodian in a way that caused harm to the individual. You may also be found guilty of first degree custodial interference if you have taken the individual out of New York State, whether or not harm was caused.
The law specifically defines the crime by three standards. The first condition or standard requires the taking of a child aged 16 or younger from the child’s legal custodian, while intending to maintain custody on a permanent basis. This condition also applies where there is an intent to keep the child for a long period of time, even if the intent isn’t to keep the child on a permanent basis.
The second and third conditions address the issue of mentally incompetent adults. As these adults typically can’t make decisions for themselves, the law views them as possessing the same limitations as children. For that reason, a legally competent adult or an institution is often granted custody of the individual. To remove the incompetent individual from that custodial situation is comparable to the taking of a child under the age of 16 and can result in the same charge of custodial interference in the first degree.
Each of these stipulations also requires that you cause harm to the minor or incompetent adult or that you transport them out of the state of New York. In order for the first degree charge to be valid, one of these two conditions must be met.
Defenses and Sentences for New York Penal Law § 135.50
It may first be helpful to understand how this situation may develop. Often, first degree custodial interference develops when one parent oversteps their legal rights to the custody of their minor children. For instance, Beth might have visitation of the children she shares with Steve. On one particular day, Steve is unreachable and Beth is, therefore, unable to return the children to Steve’s care. Even though repeated attempts to return the children are made, Steve doesn’t make contact. At the same time, Beth’s mother passed away, leaving her a home in another state. If beth takes the children to her new out-of-state home and Steve now chooses to press charges, Beth may be charged with custodial interference in the third degree.
There are only a couple of acceptable defenses to first degree custodial interference. They are taking the individual from a situation in which they have been abandoned by their legal custodian or removing the individual from an abusive situation. You must be able to show that the minor or incompetent adult was in one of these harmful situations in order to be acquitted of the charge.
This type of crime does carry a stiff penalty in New York state. A conviction carries a minimum sentence of five years of probation, although the court can sentence a guilty individual to up to four years of imprisonment. The judge will determine the sentence based on the circumstances of the crime and the defendant’s criminal history. For example, if a defendant has no prior convictions on their record, they will likely only receive a sentence of probation.
