Obstructing a Parent’s Rightful Child Custody
Custodial interference (also called custody interference) refers to the taking or keeping of a child from the custodial parent with the intent to interfere with that parent’s rightful physical custody.
In other words, when a non-custodial parent does not return his or her child to the custodial parent from a scheduled visitation, or when the custodial parent refuses to allow visitation with the non-custodial parent in violation of the court’s order. It can also occur when the parents have joint physical custody – in this case, even though the parent taking the child has physical custody rights to the child, he or she is still interfering with the other parent’s scheduled custodial rights.
Charging a Parent with Custodial Interference
Custodial interference is a crime in most states and can be punishable by jail time. Depending on your state’s laws, different circumstances can bring varying charges and different penalties. For example, some states treat custodial interference as a misdemeanor unless the child was removed out of state. In that case, the charge becomes a felony. Other states have additional penal provisions for taking the child out of the country. In certain situations, custodial interference can escalate to a state or federal charge of parental kidnapping.
Defending Against Charges
Many states also allow certain defenses to custodial interference. Imminent harm, for example, is a commonly accepted defense. In this instance, the parent removing the child claims to have interfered with normal custody rules because he or she fears for the child’s safety. Other defenses can include mutual consent and the belief that, if he or she did not take the child, the other parent would remove the child from the court’s jurisdiction (i.e. out of state or out of the country). Failure to receive court-ordered child support is not usually a valid defense against a custodial interference charge.
Some states also recognize the child’s wishes, typically when the child is at least 14 years of age and may waive the charge of custodial interference if the child states that he or she did not return to the other parent on their own accord.
Still other states will not apply the interference charge if the child is sixteen years of age or older and there are yet other states that will not file charges if the child is returned before the arrest warrant is issued.