Facing Charges for Interference with Child Custody in Georgia? Here’s What You Need to Know
In Georgia, interference with child custody is a serious crime that can have long-lasting consequences for both parents and children involved in custody disputes. Under Georgia law, specifically O.C.G.A. § 16-6-45, interference with child custody occurs when a parent or individual knowingly prevents another party from exercising their custody rights.
The repercussions of this offense can include criminal charges, fines, and even jail time, alongside potential impacts on the civil custody arrangements.
In this blog post we explore the details of this crime under O.C.G.A. § 16-6-45, including its elements, penalties, legal defenses, and how The Sherman Law Group, experienced criminal defense attorneys, can help those facing such charges.
What Is Interference with Child Custody?
Interference with child custody is defined under O.C.G.A. § 16-6-45 as knowingly and willfully preventing or attempting to prevent a parent or legal custodian from exercising their legal custody rights. This can include actions that prevent the other parent from having access to the child during their scheduled visitation or any other lawful interference with their custodial rights.
The law is intended to protect both the child’s best interests and the custodial rights of parents or legal guardians. Custody arrangements are often legally binding, and violating these arrangements can disrupt family dynamics and cause significant emotional harm to all parties involved.
Elements of Interference with Child Custody (O.C.G.A. § 16-6-45)
To be convicted of interference with child custody under O.C.G.A. § 16-6-45, certain elements must be proven beyond a reasonable doubt. These elements are as follows:
- Knowingly Preventing Custody or Visitation Rights: The accused must have knowingly and intentionally prevented the other parent or legal guardian from exercising their custody or visitation rights.
- Violation of Legal Custody Rights: The person must have acted in a way that violates a valid court order or legal custody agreement. This could be by refusing to comply with a parenting plan or court-ordered visitation schedule.
- Child Under the Custody Order: The child involved must be the subject of the custody arrangement in question. This means that the child must be the legal child of the parties involved, or the individual must have the legal right to make decisions for the child (such as being a legal guardian).
Examples of interference might include:
- Preventing the other parent from picking up the child during scheduled visitation times.
- Failing to return the child to the custodial parent at the end of the visitation period.
- Concealing the child or relocating them without the consent of the other parent or the court.
Types of Child Custody Interference
There are various ways a person may interfere with child custody rights. Some common forms include:
- Refusal to Comply with Court Orders: A parent may refuse to comply with a court-ordered visitation schedule or custody agreement. This is one of the most common forms of interference.
- Relocation or Concealment of the Child: Sometimes, a parent may attempt to hide the child or relocate to a different city or state to avoid the other parent having access to the child. This is a severe form of interference and can lead to additional legal charges such as kidnapping.
- Parental Alienation: While not always resulting in criminal charges, behaviors that involve turning the child against the other parent or undermining the other parent’s relationship with the child may lead to allegations of interference, particularly when done intentionally to disrupt the child’s bond with the other parent.
- Failure to Return the Child: If a parent fails to return the child after a scheduled visit or during a temporary custody arrangement, it may qualify as interference.
Penalties for Interference with Child Custody in Georgia
Interference with child custody under O.C.G.A. § 16-6-45 is generally considered a felony offense in Georgia. The penalties can vary depending on the circumstances of the case, but they generally include:
- Imprisonment: Conviction of interference with child custody can result in up to 10 years in prison.
- Fines: A fine may also be imposed in addition to or instead of imprisonment, though the fine amount is not specifically set by the statute.
- Probation: In some cases, probation may be granted in lieu of imprisonment, especially if the offense is a first-time violation or if other mitigating factors exist.
- Loss of Custody Rights: In addition to criminal penalties, a parent convicted of interference with child custody may face a modification of the existing custody arrangement. A court may change the custodial arrangement to the benefit of the other parent, possibly resulting in loss of parental rights.
In addition to these criminal penalties, there may also be civil consequences. The custodial parent or legal guardian could seek civil remedies to regain custody or visitation rights, and may also be entitled to reimbursement for any expenses incurred due to the interference.
Common Defenses to Interference with Child Custody Charges
While interference with child custody charges can be serious, there are a variety of legal defenses that could lead to a dismissal or reduction of charges. Some of these defenses are based on facts, while others center around procedural issues. Let’s take a look at the most common defenses.
- Lack of Knowledge or Intent
One of the most common defenses to interference with child custody is the lack of knowledge or lack of intent to interfere with custody rights. For a person to be convicted of this crime, the prosecution must prove that the accused "knowingly" interfered with the custody arrangement.
How This Defense Works:
- If the accused did not intentionally act in a way that violated the custody agreement or if they were unaware that their actions were violating a court order, they may have a strong defense. This could be the case if, for example, the accused did not know about a recent change to the custody agreement or if they misunderstood the terms of the order.
- Additionally, if the parent can show that they did not have the intent to harm the other parent’s relationship with the child, but acted out of confusion, misunderstanding, or lack of awareness, this could be a valid defense to criminal charges.
Example: A parent may have thought they were following a valid temporary custody arrangement, but a misunderstanding led them to withhold the child without realizing the visitation rights were in effect.
- The Child's Safety Was at Risk
In some cases, a parent may interfere with a custody arrangement because they believe that the child is in danger. If you can demonstrate that your actions were motivated by a legitimate concern for the child’s safety or well-being, this could serve as a defense to the charge.
How This Defense Works:
- Good Faith Efforts: If you believed, in good faith, that the child was at risk of harm—either physically or emotionally—during their time with the other parent or guardian, this can provide a justification for interference.
- Imminent Harm: In cases where the child was in imminent danger (for example, experiencing abuse or neglect), interfering with the custody arrangement may have been necessary to protect the child.
Example: A parent may have withheld the child during a visit because they believed the other parent was intoxicated and unable to care for the child safely.
- Failure to Follow the Court's Custody Order Was Justified
If the alleged interference was due to a genuine misunderstanding or a mistake about the terms of the custody order, the charge may not hold up. There are instances where parents or guardians inadvertently violate custody orders, particularly if the order was unclear or the parties involved did not fully understand its terms.
How This Defense Works:
- If the parent can prove that they acted in good faith but made an honest mistake (for example, they were not aware of a change in the custody schedule or the child’s location), this could help justify their actions.
- Inconsistent or Ambiguous Orders: If the custody order was vague or conflicting, the parent may argue that they were unable to comply with the order because they were unsure of what it required.
Example: A parent might have withheld the child because they were confused about the exact time for the custody exchange, believing the arrangement to be different than it actually was.
- Parental Rights Violation
Another defense to interference with child custody charges is that the defendant's own parental rights were being violated, and they acted to enforce those rights. In some situations, a parent may believe they are within their rights to prevent the other parent from taking custody or visitation if they feel that the other parent has violated the terms of the custody order.
How This Defense Works:
- If the accused parent can prove that the other parent has breached the terms of the custody agreement or order (such as refusing to return the child at the designated time), the accused may argue that their actions were necessary to enforce the agreement.
- In this defense, the key is showing that the actions were taken not out of spite or malice but in an effort to enforce the original custody agreement.
Example: A parent might have refused to allow the child to leave for a visit because the other parent had repeatedly failed to return the child on time or had violated other provisions of the custody agreement.
- Lack of Jurisdiction or Invalid Court Order
In some cases, the court may not have had proper jurisdiction to issue the custody order in the first place, or the order may have been invalid or unenforceable. If a custody order was issued in error or without proper legal authority, the interference charge may not stand.
How This Defense Works:
- If the custody order in question was never valid, or if the accused can prove that the court did not have jurisdiction over the case (for example, if the child was living in a different state at the time of the order), this may be a valid defense to the charge.
- Additionally, if the accused can prove that the court order was improperly executed or could not be enforced due to procedural errors, they may be able to challenge the charge.
Example: A parent may claim that the custody order was issued without the necessary legal procedures, such as without the other parent's knowledge, or in a jurisdiction that didn't have authority over the matter.
- Lack of Evidence
Sometimes, the most effective defense is showing that the prosecution lacks sufficient evidence to prove that interference with custody actually occurred. If the evidence presented by the prosecution is weak or ambiguous, the defense can challenge the case in court.
How This Defense Works:
- If the prosecution cannot provide solid evidence that the accused knowingly interfered with the custody arrangement, or if the alleged interference was not supported by documentation (such as text messages, emails, or witness testimony), the charge may be dismissed.
- Lack of clear evidence can create reasonable doubt, which is often enough to prevent a conviction.
Example: If the other parent fails to present reliable evidence that the accused violated the custody agreement (such as a lack of documentation of the scheduled visitation or communication), the defense may argue the case should be dismissed.
How an Experienced Georgia Criminal Defense Attorney Can Help
If you are facing charges of interference with child custody in Georgia, having an experienced criminal defense attorney is crucial. Here’s how an attorney can assist:
- Evaluating the Case: A defense attorney will carefully evaluate the evidence against you, including reviewing any custody orders, communication between the parties involved, and the specifics of the alleged interference.
- Negotiation with Prosecutors: Your attorney may be able to negotiate with the prosecution for a reduced charge, lesser sentence, or even a dismissal of charges, especially if there is a lack of evidence or mitigating circumstances.
- Presenting Defenses: A skilled attorney can raise legitimate defenses, such as lack of intent, the best interests of the child, or the enforcement of a court order, to ensure that your rights are protected.
- Protecting Custody Rights: If you are facing charges of interference with child custody, you may also be at risk of losing your custodial rights. An attorney can help safeguard your relationship with your child by representing your interests in both criminal and family court.
Georgia Interference with Child Custody Lawyer Near Me
Interference with child custody under O.C.G.A. § 16-6-45 is a serious offense in Georgia, with far-reaching consequences. If you or someone you know is facing charges related to interference with child custody, it’s essential to seek legal advice from a skilled criminal defense attorney.
Understanding the legal nuances, potential penalties, and available defenses can make a significant difference in the outcome of your case.
At our The Sherman Law Group, we are committed to protecting the rights of parents and individuals accused of child custody interference. We’re criminal defense lawyers, so contact us today to schedule a consultation and learn how we can help you navigate this complex legal issue.