Relates to custodial interference; repealer

Summary of provisions

Section 1 amends § 135.45 of the Penal Law, related to custodial interference in the second degree, and removes the requirement that the abductor intended to hold the child permanently or for a protracted period. This section also defines custodial interference in the second degree.

Section 2 repeals § 135.50 of the Penal Law and adds a new section 135.50 dealing with custodial interference in the first degree.

Section 3 adds three new sections (135.51, 135.52 and 135.53) to the Penal Law pertaining to the affirmative defenses, special provisions of sentences, and the duties of law enforcement officers related to the crime of custodial interference.

Section 4 provides the effective date.

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 report, the National Incidence Studies on Missing, Abducted, Runaway and Thrown-away 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, and 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, as compared to similarly-situated parents in other states, because of the

threshold needed to secure a felony warrant under the New York law is so high.

This bill lessens that burden. This is critical because the classification of a family abduction as a felony triggers federal assistance for the victimized child and parent. It is extremely difficult to prove the child's whereabouts because 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.

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. Furthermore, family violence is increasingly recognized as a factor of abduction. This legislation broadens the existing defense provisions to protect victims of domestic violence. For all the aforementioned reasons it is essential that this bill is enacted.

Legislative history

2013: A8300 (Mayer) referred to codes 2011: No Assembly Sponsor/ S. Passed Senate 2008: No Assembly Sponsor/S.1077 - Referred to Codes/ No Assembly Sponsor 2007: No Assembly Sponsor/S.1077 - Passed Senate 2005-06: No Assembly Sponsor/S. 465 - Passed Senate 2003-04: A. 6286- Referred to Codes, 5.1924- Passed Senate 2001-02: A.1856/S.4235A - Held in Assembly Codes Committee, Passed Senate 1999-00: A.7236/ S.4332 -Held in Assembly, Passed Senate

Fiscal implications

None.

Local fiscal implications

None.

Effective date

This act shall take effect on the first of November after enactment.