Going through a divorce can be tough for all parties and things can get right down nasty—especially when minor children are involved. One parent may want full custody and the other joint custody. Deciding who gets the kids on what holiday or how many weeks during the summer can all be contentious and exhausting. Coming to an agreeable child custody agreement between the parties is a major feat and even after an agreement is reached there can still be problems. One party may keep the child longer than permitted in the agreement or may even take the child out of the state without the other party’s permission. Most people don’t know that when a person doesn’t comply with the child custody agreement that he or she is committing a criminal offense known as interference with custody.
INTERFERENCE WITH CUSTODY UNDER GEORGIA LAW
Under Georgia law, O.C.G.A. §16-6-45(b)(1), a person commits the offense of
interference with custody when without lawful authority to do so the person:
(A) 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;
(B) Knowingly harbors any child or committed person who has absconded; or,
(C) 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.
As defined in the statute, the terms:
(1) “Child” means any individual who is under the age of 17 years or any individual who is under the age of 18 years who is alleged to be a deprived child as such is defined in O.C.G.A. §15-11-2, relating to juvenile proceedings.
(2) “Committed person” means any child or other person whose custody is entrusted to another individual by authority of law.
(3) “Lawful custody” means that custody inherent in the natural parents, that custody awarded by proper authority as provided in O.C.G.A. §15-11-45, or that custody awarded to a parent, guardian, or other person by a court of competent jurisdiction.
PENALTY FOR INTERFERENCE WITH CUSTODY UNDER GEORGIA LAW
Under Georgia law, O.C.G.A. §16-6-45(b)(2), a person
convicted of the offense of interference with custody shall be punished as
(A) Upon conviction of the first offense, the defendant will be guilty of a misdemeanor and will be fined not less than $200.00 nor more than $500.00 or be imprisoned for not less than one month nor more than five months, or both fined and imprisoned;
(B) Upon conviction of the second offense, the
defendant will be guilty of a misdemeanor and will be fined not less than
$400.00 nor more than $1,000.00 or be imprisoned for not less than three months
nor more than 12 months, or both fined and imprisoned; and,
(C) Upon the conviction of the third or subsequent offense, the defendant will be guilty of a felony and be punished by imprisonment for not less than one nor more than five years.
INTERSTATE INTERFERENCE WITH CUSTODY UNDER GEORGIA LAW
Also, under O.C.G.A. §16-6-45(c):
(1) A person commits the offense of interstate
interference with custody when without lawful authority to do so 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.
(2) A person also commits the offense of interstate interference with custody when the person removes a minor or committed person from this state in the lawful exercise of a visitation right and, upon the expiration of the period of lawful visitation, intentionally retains possession of the minor or committed person in another state for the purpose of keeping the minor or committed person away from the individual having lawful custody of the minor or committed person. The offense is deemed to be committed in the county to which the minor or committed person was to have been returned upon expiration of the period of lawful visitation.
PENALTY FOR INTERSTATE INTERFERENCE WITH CUSTODY UNDER GEORGIA LAW
Under Georgia law, O.C.G.A. §16-6-45(c)(3), a person convicted of the offense of interstate interference with custody will be guilty of a felony and shall be imprisoned for not less than one year nor more than five years.
INTERFERENCE WITH CUSTODY CASE LAW IN GEORGIA
In the Georgia Supreme court case, Brassell v. State, 259 Ga. 590 (1989), the appellant Brassell brought an interlocutory appeal from the trial court’s refusal to dismiss a misdemeanor charge of interference with custody. Pursuant to a judgment and decree of divorce, Brassell’s former wife was granted custody of their minor child. She moved with the child to Glynn County. While he was exercising visitation in Augusta, Brassell called to ask his former wife to allow him to keep the child several extra days. She refused and swore out a warrant against him for interference with custody.
Brassell argued that he did not interfere with custody within the meaning of the statute because the divorce decree provides that the father have “the right of reasonable visitation, which shall include, but not be limited to, every weekend from 6:00 p. m. Friday until 6:00 p. m. on Sunday . . .” there was not sufficient evidence that he had “intentionally and willfully [retained] possession . . . within this state of the child . . . upon the expiration of a lawful period of visitation with the child . . . .” O.C.G.A. §16-5-45 (b)(1)(C).
He insisted that where the divorce decree provides for “reasonable visitation,” it is unconstitutional to allow the custodial parent to unilaterally declare that visitation has been unreasonably exercised and criminally prosecute the other parent. The Court held that the use of the words “shall include, but not be limited to . . .” plainly does not limit the definition of “reasonable” and that the defendant could not be in violation of the statute unless the terms of the custody order were so clear that the parties would have exact notice of the line which may not be transgressed.
DEFENSES AGAINST INTERFERENCE WITH CUSTODY IN GEORGIA
Lawful Custody: The statute requires that the accused not have lawful custody of the minor child to be convicted of interference with custody; thus, if the accused can provide proof that he or she is the parent with lawful custody and/or had the lawful authority to keep the child beyond the permitted visitation or take the child out of state then the charges against the accused will more than likely be dismissed.
An Unclear Agreement: Another defense against the criminal offense of interference with custody is to provide proof to the State and/or the Court that the terms of the agreement were unclear and, therefore, the accused did not violate the conditions of the agreement as in Brassell v. State.
CONTACT BIXON LAW TODAY
If you have been charged with interference with custody, give Bixon Law a call today to speak to one of our experienced Georgia criminal defense lawyer. We will vigorously defend your legal rights and advocate on your behalf to have your case dismissed or the charges against you reduced. As experienced trial attorneys, we are also not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations and we invite you to call us at 404-551-5684 for a free consultation today.