If you are facing an interference with custody charge in Georgia, it is important to have a clear understanding of the laws surrounding the offense, your rights, and available defenses. Keep reading to learn more about interference with custody, including legal definitions, elements of the offense, potential penalties, and potential defenses. By being well-informed, you can navigate the legal process more effectively and protect your rights.
Key Takeaways
- Under O.C.G.A. 19-9-3(a)(5), a child that has reached 14 years old has the right to select the parent they want to live with.
- A custodial parent cannot deny court-ordered visitation to the non-custodial parent. The custodial parent is the parent that the child resides with more than 50% of the time or, if parenting time is equal, the parent who is receiving child support.
- Although an interference with custody charge is generally treated as a misdemeanor, facing a misdemeanor charge can have serious consequences. An experienced criminal defense attorney brings invaluable knowledge, expertise, and resources to the table. Further, a criminal defense attorney will work to protect your rights, build a strong defense, and advocate on your behalf. By engaging a reputable attorney, you gain a formidable ally who will tirelessly fight for your best interests and work towards achieving the most favorable resolution possible in your misdemeanor case.
Interference with Custody in Georgia
A Defendant commits the offense of interference with custody when, without lawful authority to do so, the Defendant:
- 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; or
- 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.
What are the Elements of Interference with Custody?
The elements of an offense are the different factors that the State must prove beyond a reasonable doubt to secure a conviction on a particular charge. For the offense of interference with custody, the State must prove the following:
- Knowing and Unauthorized Interference: The Defendant must have knowingly and intentionally enticed a child away from the individual having custody of the child. This means that they were aware of the existence of a lawful custodian and intentionally acted to disrupt or impede that custody. Interference can involve taking, removing, withholding, or concealing the child without the permission or authority of the custodial parent or guardian.
- Child Under the Age of 17: The offense applies specifically to children under the age of 17 or children under the age of 18 who are dependent. If the child does not meet the age requirement, the offense may be categorized differently.
- Intent to Deprive Custodian: The interference must be committed with the intent to deprive the lawful custodian of their custodial rights. This means that the Defendant must have the specific purpose of denying the custodian of their rightful custody of the child.
An interference with custody offense requires a Defendant to entice the child away from anindividual having custody. Without this element, the offense of interference with custody is not complete. For example, in Owens v. State, the Georgia Court of Appeals found that the Defendant could not be convicted of interference with custody of a minor based on his conduct in picking up the victim and her friend after they left school in the middle of the school day, or for his conduct in having the victim at his house when she was supposed to be in school because the school was not the lawful custodian of the victim or her friend.
Penalties
A person convicted of the offense of interference with custody will:
- For the first offense, be guilty of a misdemeanor and be fined no less than $200.00 and no more than $500.00, imprisoned for no less than one month and no more than five months or both fined and imprisoned.
- For the second offense, be guilty of a misdemeanor and will be fined no less than $400.00 and no more than $1,000.00, imprisoned for no less than three months and no more than twelve months, or both fined and imprisoned.
- For the third or subsequent offense, be guilty of a felony and imprisoned for no less than one year and no more than five years.
Defenses
There are several interference with custody defenses that your criminal defense attorney can argue based on the facts of your case, including:
- Child not under the age of 17: If the person is over 17, they will not be considered a child for the purposes of an interference with custody offense.
- Consent: If you can establish that you had consent or authorization from the custodial parent or guardian to take or retain the child, it can be a valid defense. This could include situations where the custodial parent gave explicit permission or there was a court order granting you custody rights.
- Emergency Circumstances: In some cases, an individual may have taken or retained a child in response to an emergency, such as protecting the child from imminent harm or danger. If you can demonstrate that your actions were necessary to safeguard the child’s well-being, it may serve as a defense.
- Lack of Intent: Interference with custody requires the intent to deprive the lawful custodian of their custody rights. If you can demonstrate that you did not have the requisite intent, such as a misunderstanding or a lack of knowledge about the custodial arrangement, it may be a defense.
Have Questions? Give Me a Call.
If you or your loved one is charged with interference with custody, I am here to help. I have decades of experience representing people charged with misdemeanors and serious felonies, and I will make sure you receive the best defense possible. If you need legal help, give me a call today!