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This bill expands and updates New York's criminal laws on custodial interference, adds new penalties, defenses, and law enforcement duties.
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Strengthen Custodial Interference Laws
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to codes
- Referred to codes
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
741
2017-2018 Regular Sessions
IN SENATE
January 4, 2017
Introduced by Sens. RITCHIE, AMEDORE, O'MARA, SERINO, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to custodial interference and repealing certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 135.45 of the penal law is amended to read as follows: § 135.45 Custodial interference in the second degree.
A person is guilty of custodial interference in the second degree when:
1. Being a relative of a child less than sixteen years old, [intending to hold such child permanently or for a protracted period,] and knowing that he or she has no legal right to do so, he or she takes or entices such child from his or her lawful custodian; or
2. In the absence of a court order determining the rights of custody or visitation to a child less than sixteen years old, a relative of such child takes or entices such child with intent to deny access from, custody or visitation rights of, another to that child or for the purpose of evading the jurisdiction of the courts of this state; or
3. He or she retains a child less than sixteen years old or an 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; or
4. Knowing that he or she has no legal right to do so, he or she 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.
Custodial interference in the second degree is a class A misdemeanor.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02501-01-7
S. 741 2
§ 2. Section 135.50 of the penal law is REPEALED and a new section 135.50 is added to read as follows: § 135.50 Custodial interference in the first degree.
A person is guilty of custodial interference in the first degree when he or she commits the crime of custodial interference in the second degree and:
1. detains or conceals the child or incompetent person from his or her lawful custodian with intent to hold the child or incompetent person permanently or for a protracted period of time; or
2. exposes the child or incompetent person to a risk that his or her safety will be endangered or his or her health materially impaired; or
3. removes the child or incompetent person from the state.
Custodial interference in the first degree is a class E felony.
§ 3. The penal law is amended by adding three new sections 135.51, 135.52 and 135.53 to read as follows: § 135.51 Affirmative defense.
It shall be an affirmative defense to a prosecution under section 135.45 or under subdivision one or three of section 135.50 of this article that the victim had been abandoned or that the taking was necessary in an emergency to protect the victim because he or she has been subjected to or threatened with mistreatment or abuse or the person was fleeing an incidence or pattern of domestic violence. § 135.52 Special provisions relating to sentencing.
1. In addition to any sentence imposed against any person convicted of violating section 135.45 or 135.50 of this article, the court may assess any reasonable expenses incurred by the lawful custodian and/or state or other unit of government in searching for and/or recovering the child or incompetent person.
2. As a condition of any sentence imposed against any person convicted of violating section 135.45 or 135.50 of this article, the court may in addition, require the defendant to receive counseling at the expense of the defendant, based on his or her ability to pay. § 135.53 Duties of law enforcement officers.
1. A law enforcement officer who is conducting an investigation for a violation of section 135.45 or 135.50 of this article shall enter such case in the federal National Crime Information Center Computer or any similar successor compilation.
2. A law enforcement officer who is conducting an investigation or making an arrest for a violation of section 135.45 or 135.50 of this article shall take the child or incompetent person into protective custody. Such officer shall return such child or incompetent person taken into protective custody to his or her lawful custodian or to the institution from which he or she is entrusted or to the court in which a custody proceeding is pending.
§ 4. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, in relation to custodial interference and repealing certain provisions of such law relating thereto
Purpose
With increasing recognition of the seriousness of parental abduction, this bill is designed to overcome some of the significant obstacles to the recovery and return of missing children.
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.
Read the full memo (693 words)
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
2016: S.4680 referred to Codes/ A.1980 Referred to Codes. 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, S.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.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.