Relates to custodial interference; repealer

Summary of provisions

Section 1 amends subdivision 1 of section 135.45 of the Penal Law, custodial interference in the second degree, by removing the requirement to show that the abductor intended to hold the child permanently or for a protracted period, therefore making the focus of the statute the actual "taking" or "enticing" of the child.

Section 1 also amends subdivision 2 of section 135.45 of the Penal Law to define custodial interference in the second degree as the taking or enticing of a child, in the absence of a court order determining the rights of custody or visitation, with intent to deny access, custody or visitation rights of another to that child or for the purpose of evading the courts of this State.

Section 1 also amends subdivision 3 of section 135.45 of the Penal Law to include within the definition of custodial interference in the second degree the wrongful withholding or failure to return such child or incompetent person after expiration of any authorized visitation period with intent to either intimidate or harass another who has lawful custody or to prevent the other person from regaining custody.

Section 2 repeals section 135.50 of the Penal Law and adds a new section 135.50 dealing with custodial interference in the first degree and states that a person would be guilty of such offense when he or she commits the crime of custodial interference in the second degree and either: detains or conceals a child or incompetent person from his or her lawful custodian with intent to hold the child permanently or for a protracted period of time; or exposes the child or incompetent person to a risk in which his or her safety will be endangered or his or her health materially impaired; or removes the child or incompetent person from the state.

Section 3 adds three new sections (135.51, 135.52 and 135.53) to the Penal Law. Section 135.51 provides that it shall be an affirmative defense to a prosecution if the child or incompetent person has been abandoned, threatened with or subjected to violence or was fleeing a domestic violence situation. Section 135.52 provides that the court may assess any reasonable expenses incurred by the lawful custodian or governmental unit searching for the child against any person convicted under this section and may require such person to undergo counseling at his or her own expense. Section 135.53 provides that law enforcement officers conducting investigations in these matters

shall enter the case into the National Crime Information Center (NCIC) Computer and shall take the child or incompetent person into protective custody and return such child or incompetent person to his or her lawful custodian, to the institution from which he or she is entrusted or to the court in which a custody proceeding is pending.

Section 4 provides that this act shall take effect on the first day of November after enactment.

Existing law

Existing law requires that the abductor intends to hold the child permanently, which is almost impossible to prove and assumes that the whereabouts of the abducted child are known. Additionally, existing law does not make it a crime for one parent to conceal a child from his or her other parent in the absence of a court order.

Justification

According to the federal Office of Juvenile Justice and Delinquency Prevention in its National Incidence Studies on Missing, Abducted, Runaway and Thrownaway Children in America (NISMART), there are as many as 354,100 children abducted by a family member each year. These cases account for nearly 75% of all abductions.

There is increasing recognition among experts of the seriousness of parental abduction and its long-term negative consequences. Many children suffer permanent physical and/or psychological trauma as a result of the abduction. The left-behind parent, who is suffering with anxiety and loss, must also shoulder the financial burden of conducting a search for the child.

Unlike other state statutes, (e.g. California, N.J., Florida, Washington), the New York Statute is not comprehensive and only minimally effective. A New York citizen whose child was abducted by a family member is frequently placed at a terrible disadvantage in comparison to a parent facing the same problem in another state, because of the difficult threshold needed to secure a felony warrant under the New York law. This is critical because the classification of a family abduction as a felony triggers federal assistance for the victimized child and parent. Because it is extremely difficult to prove the child's whereabouts, it is virtually impossible to establish that the child has been taken out of the state. Unless a felony warrant is issued, the FBI and other authorities will not intervene in the location effort. The National Center for Missing and Exploited Children, for example, will not conduct a well renowned national picture campaign or "ADVO" which has achieved a 7 out of 10 child recovery rate.

Additionally, the current statute fails to encompass all scenarios of abduction. Conditioning the definition on the existence of a custody decree excludes large numbers of victimized parents and leaves many children vulnerable since abductions often occur during separation or prior to issuance of any order.

Finally, family violence is increasingly recognized as a factor of abduction. This proposal broadens the existing defense provisions to protect victims of domestic violence.

Legislative history

2008: S.1077 - Referred to Codes 2007: S.1077 - Passed Senate 2005-06: S.465 - Passed Senate 2003-04: S.1924 - Passed Senate 2001-02: S.4235/A.1856A - Passed Senate, Held in Assembly Codes Committee 1999-00: S.4332/A.7236 - Passed Senate, Held in Assembly Codes Committee 1997-98: S.3249- Referred to Codes

Fiscal implications

None.

Local fiscal implications

None.

Effective date

First day of November after enactment.