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Interstate Interference with Custody in Georgia

by Sharon Jackson  on March 1, 2023 under 

A family law matter can easily go from civil to criminal when one parent refuses to follow a court order. A parent, for example, has engaged in Interstate Interference with Custody if they took a child out of Georgia without the court-appointed parent’s consent. More specifically, they have violated Official Code of Georgia Annotated Title 16 Chapter 5-45.

In most divorce and child custody proceedings, the judge will issue an order or judgment outlining the parenting time, visitation, and duties that each parent is expected to do. Blatantly disregarding a custody order can have serious repercussions. A criminal arrest and prosecution might arise when one parent holds the child over the visiting time that was specified in the agreement. If you have any questions on this at all, please contact an experienced child custody lawyer Sharon Jackson at (678) 909-4100.

Interference with Custody under Georgia Law

According to Georgia law O.C.G.A. 16-6-45(b)(1), a person violates the statute on Interference with Custody when they:

(a) Take or lure away any child away from the person who has legal custody of them, whether intentionally or carelessly;

(b) Willfully take in any minor or committed offender who has run away;

(c) Intentionally and deliberately keep them in this state once the allowable visiting period with the child or committed person has passed.

Penalty for Interference with Custody

If one of the parties disobeys a custody order, the other parent has the right to petition the court to enforce and punish the offending party in contempt of that order.

For a first offense, the case is handled as a misdemeanor, and the punishments can range from one to five months in prison to a $200 to $500 fine.

For a second conviction, the case is still considered a misdemeanor and carries a greater fine of between $400 and $1,000 as well as a minimum sentence of three months in jail and a maximum of twelve months.

A third conviction raises the bar significantly. The individual accused of Interference with Custody in this case will face felony charges. In the legal system, felonies are dealt with more severely, and judges have the power to impose prison terms of up to five years for a third conviction. Any sentence over a year is served in a state prison, sometimes in a remote area. Sentences under a year are served in a county jail which is usually close to a convicted person’s home.

What is Interstate Interference with Custody?

Then there is Interstate Interference with Custody which happens when a parent takes a minor out of Georgia without the legal custodian's consent. A parent commits this felony when they, without legal authority:

  •         Intentionally or recklessly takes or entices a child away from the court-appointed custodial parent and brings such child into Georgia or removes them from Georgia.
  •         Takes a minor from Georgia in a legal exercise of their visitation right; nevertheless, once that period has elapsed, they intentionally or recklessly hold the minor in another state to keep them apart from the parent who is legally in charge of them.

This may be relevant in cases involving child custody if one parent keeps the child longer than the allowable visiting period.

Penalty for Interstate Interference with Custody

In Georgia, a person convicted of the offense of Interstate Interference with Custody is guilty of a felony and shall be jailed for not less than one year nor more than five years.

Can a mother take a child out of state without father's consent in Georgia?

She can’t. In most cases, parents must revise their child custody arrangements if they want to leave the state with their child. This applies whether they have full custody or joint custody. Such revisions may be obtained by parents through a court order, written notices, or agreements made between them.

If It Happened to You – Defenses Against Interstate interference with Custody

They were no longer minors.

In Georgia law, a child is defined as a person who is under the age of 17 or 18, depending on the situation. Hence, there cannot be a conviction if it can be established that the committed person was older than this age when the interference was done.

Unclear wording of the custody order 

If the parties did not get precise knowledge of the line, the defendant did not break the terms of the agreement. State v. Brassell, 259 Ga. 590 (1989).

Lack of purpose or awareness of taking

You may have a defense if you didn't plan to take the child away from the parent who is legally responsible for raising them or if you had no idea that you were violating the agreed-upon visitation schedules. In one case, the court determined that the father was not guilty of Interfering with Custody of his daughter because the inevitable breakdown of his truck was the sole reason she was held longer than allowed. State vs Scott, 198 Ga. App. 10 1990.

There was a basis to suspect that the child had suffered abuse or neglect.

Under the law, a child may be withheld from their legal guardian if there is sufficient grounds to suspect that they have been neglected or abused. The Division of Family and Children Services must be notified within 72 hours even if there is cause.

Contact an Experienced Gwinnett County Child Custody Attorney

Call Attorney Sharon Jackson LLC at (678) 909-4100 for a consultation if you or a loved one has been accused of Interference with Custody. Violating a custody order can have serious repercussions, so it's critical to obtain legal counsel right away to effectively defend your rights.


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