Four ways to avoid a charge of custodial interference
When a parent’s violation of a custody order is deliberate and willful, it may, in appropriate circumstances, warrant criminal charges under the crime of “custodial interference.” But there are a number of defenses to this crime, as discussed below. [See yesterday’s blog to learn more about the crime of “custodial interference”]
First, a parent charged with custodial interference may be able to avoid the charge if he reasonably believes that the actions he took were necessary to preserve the child from imminent danger to his welfare. However, this defense won’t succeed if the parent doesn’t promptly notify local police or children’s protective services of the situation soon after he takes the child from the other parent’s custody.
Secondly, a parent may circumvent a custodial interference charge if he reasonably believes that the taking or detaining of the minor child was consented to by the other parent, or by an authorized state agency. For this defense, however, will need to show persuasive evidence that supports his belief.
A third possible defense may exist if the child himself voluntarily went with the parent charged with the crime, and assuming that the child is old enough to know what he’s doing and where he’s going. To sustain this defense, the parent in question must show that he had no intention or purpose of committing a crime of any sort.
A fourth defense arises when is a parent having the right of custody reasonably believes she must flee from imminent physical danger from the other parent. Here, again, the parent in flight must give notice of the child’s location, as soon as possible to the police department or to child protective services.