Interference with Custody

Have you Been Charged with Interference with Custody in Georgia?

Family law is one of the most contentious areas of the law as tensions run high when making decisions about children. After a divorce, a child custody agreement is developed between the parties to dictate at what times each party has control of the minor child. Problems arise when parents do not follow the custody agreement and deny custody to the other party, take the child out of the state of Georgia, or keeping the child longer than their permitted visitation time. This is also known as the crime of interference with custody. If you or a loved one has been charged with interference with custody, contact Lawson and Berry and their team of experienced Custody Attorneys today. Going against a custody order can have substantial consequences, and it is crucial to seek representation from the beginning to best protect your rights.

Some people mistakenly refer to the crime of interference with custody as a kidnapping, but the main difference is that kidnapping requires that the taking is against the victim's will. Interference with custody does not mean that the child was taken against his or her will. A parent could be charged with interference with custody even if the child wanted to stay with that parent or they were bribed to remain with that parent.

There is also interstate interference with custody, which occurs when a parent removes the child from Georgia without the permission of the legal custodian or keeps the child in another state beyond the time the custodial parent agreed to. 

Under Georgia law, child refers to any individual under the age of 17 years or a person who is under 18 who is alleged to be a dependent child. O.C.G.A. §16-5-45(a).

Interference with Custody under Georgia Law O.C.G.A. §16-6-45(b)

A person commits the offense of interference with custody when without lawful authority to do so, the person:

  • Knowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person;
  • Knowingly harbors any child or committed person who has absconded; provided, however, that this subparagraph shall not apply to a service provider that notifies the child's parent, guardian, or legal custodian of the child's location and general state of well-being as soon as possible but not later than 72 hours after the child's acceptance of services; provided, further, that such notification shall not be required if:
    1. The service provider has reasonable cause to believe that the minor has been abused or neglected and makes a child abuse report
    2. The child will not disclose the name of the child's parent, guardian, or legal custodian; or
    3. The child's parent, guardian, or legal custodian cannot be reached, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child's acceptance of services
  • Intentionally and willfully retains possession within this state of the child or committed person upon the expiration of a lawful period of visitation with the child or committed person.

Interstate Interference with Custody under Georgia Law O.C.G.A. §16-5-45(c)

A person commits the offense of interstate interference with custody when without lawful authority to do so:

(1) The person knowingly or recklessly takes or entices any minor or committed person away from the individual who has lawful custody of such minor or committed person and in so doing brings such minor or committed person into this state or removes such minor or committed person from this state, or;

(2) The person removes a minor or committed person from this state in a lawful exercise of their visitation right but upon the expiration of the period of lawful visitation, they intentional keep the minor or committed person in another state for the purpose of keeping them away from the person who has lawful custody of them.

Case Law

Father was convicted of interference with custody when he violated the custody agreement concerning his two children. State v. Evans, 212 Ga. App. 415, (1994). Father and ex-wife had two daughters. Father informed Mother that he intended to exercise his two- week visitation beginning July 14. Two weeks later, Mother went to Father's residence to pick up the child and found a note stating that the child could not be picked up until July 31st. She returned on the 31st, but Father refused to turn over their daughter to her. As Mother was leaving the premises, Father yelled after her “You'll never see her again.” Mother continued her efforts to locate her daughter but was unsuccessful until the child was recovered from Father after an automobile accident. The Court found that the Father broke the custody agreement and interfered with Mother's visitation time. Therefore, there was sufficient evidence to find him guilty of interference with custody.

What Needs to be Proven

To be convicted of interference with custody, the State must prove that the suspect is guilty beyond a reasonable doubt. This includes showing that the suspect knowingly or recklessly kept the child from another's care without legal authority to do so as well as showing intent.

Although not outlined in the statute, activities such as blocking phone calls or preventing a child from interacting with the other parent are activities that interfere with the parent-child relationship and a Court may take those actions into consideration while making custody decisions.

Penalty for Interference with Custody in Georgia

If a party violates a custody order, the other parent is entitled to file a motion with the Court asking them to enforce and hold them in contempt of that order. If convicted of interference with custody, the penalty for a first offense will be a fine between $200.00 and $500.00 or imprisonment for one month to five months, or both a fine and prison.

A second conviction for interference with custody escalates the penalty to a fine between $400.00 and $1,000.00, a prison term between three months and 12 months, or both. A first and second conviction shall be treated as a misdemeanor.

A third or subsequent conviction will carry the consequences of a felony charge and will be punished by a prison term between one and five years.

A person convicted of the crime of interstate interference with custody will be guilty of a felony and will be imprisoned for a period between one and five years.

Defenses in Georgia

The agreement was not clear: If the terms of the custody order were not clear and the parties do not have exact notice of the line, then the defendant did not violate the conditions of the agreement. Brassell v. State, 259 Ga. 590, (1989). 

Lack of Intent or Knowledge of taking: If you did not intend to take the child from the person who has lawful custody of the child or did not have any knowledge that you were going against the established visitation times, then you could have a defense. One example in case law is where the Court found the father not guilty of interference with custody of his minor daughter when the only reason that he kept the daughter beyond the authorized period was because of the unavoidable breakdown of his truck. Scott v. State, 198 Ga. App. 10, 1990.

There was a reason to believe that the child had been abused or neglected: The statute allows for a child to be kept from the lawful custodian if there is reasonable cause to believe that they have been abused or neglected. However even if there is cause, the Division of Family and Children Services must be notified within 72 hours.

They were not a child: Child under Georgia law means someone under the age of 17 or 18 in certain circumstances. Therefore, if it can be proved that the child was above this age when the interference was done, then there cannot be a conviction.

What are not Defenses

The other party was not paying child support, so I denied visitation to the non-paying parent: Even if the party is not paying child support, they are still entitled to exercise visitation with the minor child. There are other actions you can take if the other party is not paying on time such as contacting the Division of Child Support Services.

The child did not want to go: If the child is refusing to leave home, the parent still has the responsibility to follow the visitation and custody agreement.

The child consented to the taking: It does not matter if the child agreed to go with the defendant if they were still taken against the will of the custodial parent at the time.

A mistake of age: The fact that the accused was ignorant of the minor child's age and believed them to be over 18 years ago is not a defense to the crime of interference with custody.

I had permission to go out of the state and just extended our stay: When a parent receives consent to take the child out of state but extends their stay without notifying the other parent or to the objection of the other parent, then they will be guilty of interstate interference with custody. Permission to go out of state only extends to the agreed upon time and without an agreement between the parties, any extension of that time is a crime.

A better life would be had with me instead of the other party: Personal opinions on what is best for the child do not overrule a court order. Both sides must adhere to the court order unless otherwise agreed upon. Any attempts to interfere with another's time with the children based on opinion will not hold up in court.

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