Physical custody of a child or committed person in Georgia consists of having the legal right to determine where the child or committed person lives. After a divorce or separation, a parent must have physical custody to determine where a child can live.
A guardian of a committed person must also have legal custody to determine where and with whom the committed person resides. Anyone without physical or legal custody who interferes with the decision of the person who does have physical or legal custody is considered to be interfering with that custody.
What Is Interference with Custody?
Interfering with custody is a crime that occurs when a person knowingly or recklessly entices or takes a child or committed person away from the lawful custody of another person.
Interference with custody is a federal crime, and federal law applies in Georgia as it does in all other states of the United States. Under federal law, interference with custody is a misdemeanor offense. So a person can be charged by federal authorities for interference with custody.
Interference with custody is also a crime under Georgia law. Under Georgia law, the crime of interference with custody is committed by a person when a person who does not have the legal authority does the any of the following acts:
- Either intentionally or recklessly takes or entices a child or committed person away from the person who has lawful custody of them;
- Intentionally harbors any child or committed person who has left the custody of the person who has lawful custody of them;
- Willfully and with intention keeps possession within the State of Georgia of the child or committed person after a legal period of visitation with the child or committed person has ended.
The Georgia statute defines “lawful custody” as any of three types:
- Custody of the kind that a child’s natural parents have;
- Custody that has been awarded to a person by a proper legal authority; or
- Custody awarded to a parent, guardian, or other person by a court with the authority
To award it.
In Georgia, interstate interference with custody is also a crime. It is defined as taking or enticing a minor or committed person away from the person who has lawful custody of the child or committed person and bringing the child or committed person into or out of the state. In other words interstate interference with custody is the crime of interference with custody that includes crossing the border of the State of Georgia.
Interstate interference with custody also includes failing to return a child to the person who has physical custody after a period of visitation in another state has ended. This crime includes having the purpose of keeping the minor or committed person away from the person who has lawful custody.
The offense of interstate interference with custody is considered to have been committed in the county in Georgia to which the minor or committed person was to have been returned at the end of the period of lawful visitation. Interstate interference with custody is always charged as a felony and the punishment is mandatory prison time of at least one year and not more than five years.
Why Am I Accused of Interfering When the Child Wanted to Remain with Me?
According to Georgia law, harboring a child or committed person who has absconded from their home is interfering with custody. For instance, a runaway child may ask to live with a person without their parents’ consent. That person is interfering with child custody when they do not return the child or inform the person with legal custody where the child can be found. Ideally, a person would return the child to the person with physical custody, if that is possible. It might be possible to negotiate an extension of a visitation with the parent who has physical custody.
The wishes of the child are not an issue in the crime, although a judge might consider the child’s feelings in making a sentencing decision. However, it is important to understand that if a child is dissatisfied with a custody situation, the better solution would be to consult an experienced family law attorney.
An attorney might be able to help a person negotiate a change to a custody and visitation plan. Or, if necessary, the attorney could help the person petition a court for modification of an existing custody order. Simply ignoring the provisions of an existing order and violating it makes a person vulnerable to possible arrest, conviction of a crime and imposition of a mandatory fine or term of imprisonment or both.
Can I Be Arrested If I Do Not Give a Child Back After My Visitation Time?
A person can be arrested for failing to return a child to the person who has custody after a period of visitation per the Georgia law explained above. The crime of interfering with custody is a misdemeanor in Georgia if the offense is a first or second offense. If it is a third offense, it is a felony. Any offenses after a third offense are also charged as felonies.
What Is the Penalty for Custody Interference in Georgia?
The punishment for interference with custody depends on whether the crime is a first, second, third or subsequent offense.
The possible consequences of conviction of interference with custody under Georgia law are as follows:
- First Offense: Conviction of the first offense is a misdemeanor. There is a mandatory fine of at least $200.00 but not more than $500.00 or imprisonment for at least one month but not more than five months. Imposition of both the fine and the term of imprisonment is also possible;
- Second Offense: Upon conviction of the second offense, the perpetrator would be guilty of a misdemeanor and would be fined at least $400.00 but not more than $1,000.00 or be imprisoned for at least three months but not more than 12 months, or both fined and imprisoned;
- Third and Subsequent Offenses: A third or subsequent offense is a felony, so upon conviction the perpetrator would have a felony conviction on their criminal record. The punishment is mandatory imprisonment for at least one year but not more than five years.
A person can see from the fact that there are mandatory minimum punishments for even a first offense, i.e. a fine of $200 and a term in jail of one month, that authorities in Georgia take the crime of interference with custody seriously.
Keep in mind that whenever a person is convicted of either a misdemeanor or a felony, the person has a criminal record. The convictions must be reported on job applications and applications for housing. And a second or third conviction looks just that much worse on applications.
What If I Have Already Been Convicted of Interfering with Custody Once Before?
Again, a second conviction is still a misdemeanor, but it comes with a harsher punishment. The punishment for a second conviction of interference with custody is:
- A mandatory fine of at least $400 but not more than $1,000;
- A mandatory term of imprisonment of at least three months but not more than
- Imposition of both the term of imprisonment and the fine is possible.
Do I Need an Attorney to Represent Me in My Case?
Whenever you are facing a criminal charge for a second offense, it is essential to retain legal representation. Keep in mind that the punishment is a mandatory fine of at least $300 or 3 months in jail or both. If you are facing a second charge of custody interference, contact an experienced Georgia criminal lawyer immediately so you can learn about your options and how best to proceed.