In Georgia, the definition of interference with custody is found in the Georgia Code § 16-5-45. Specifically, the Georgia Code defines interference of custody as the act of knowingly or recklessly taking or enticing any child or committed person away from the person who has lawful custody of a child or committed person.
Interference of custody may also occur in Georgia when a person intentionally and willfully retains possession of a child or committed person upon the expiration of a lawful period of visitation with the child or committed person. In other words, if a parent keeps a child past their court-ordered period of visitation or possession, then they may also be guilty of interference of custody.
The term child custody itself refers to the legal and practical relationship between a child and their parent or legal guardian. Although there are different types of child custody rights and arrangements, custody is generally divided into two different types of custody:
- Legal Custody: Legal custody gives a parent the legal right and obligation to make decisions regarding their child’s upbringing, such as decisions involving the child’s schooling, healthcare, and religious upbringing;
- Physical Custody: Physical custody involves the legal right to have a child physically live with one parent.
- The state of Georgia recognizes joint or shared physical custody, where a child lives with each parent for relatively equal amounts of time;
- Sole custody, where one parent has full decision-making authority over the child, and the other party has the rights to lesser periods of possession or visitation rights.
It is important to follow the Georgia court’s order regarding time periods for possession or visitation of a child, as violation of such times could result in the offense of interference with custody.
Who Is Considered a Child in Georgia?
The Georgia Code also provides a definition for who is considered to be a child in Georgia. The term child in Georgia refers to any individual who is under the age of 17 years or any individual who is under the age of 18 years and is alleged to be a dependent child or a child in need of services. Georgia has a laundry list of who is considered to be a child in need of services, including an 18-year-old who was:
- Adjudicated by a Court to be in need of care, guidance, counseling, structure, supervision, treatment, or rehabilitation and who is adjudicated to be:
- Subject to compulsory school attendance due to being habitually truant;
- Habitually disobedient of the reasonable and lawful commands of their parent, guardian, or legal custodian and is ungovernable or places themselves or others in unsafe circumstances;
- A runaway;
- A child who has committed an offense applicable only to a child;
- A child who wanders or loiters about the streets of any city or in or about any highway or any public place between the hours of 12:00 Midnight and 5:00 A.M.;
- A child who disobeys the terms of their supervision contained in a court order; or
- A child who patronizes any bar where alcoholic beverages are being sold, unaccompanied by their parent, guardian, or legal custodian, or who possesses alcoholic beverages; or
- A child who has committed a delinquent act and is adjudicated to be in need of supervision but not in need of treatment or rehabilitation.
Who Is a Committed Person?
The term committed person in Georgia refers to any child or other person whose custody is entrusted to another individual by authority of law. This means that if a person is under a legal guardianship in the state of Georgia, interference of custody may also apply to that person subject to the guardianship, regardless of their age.
For example, legal custody of a person is typically given to another when the person in question is physically or mentally handicapped or has been adjudicated by a court as incapable of taking care of themselves. Typically, such an adjudication of an inability to care for oneself would occur at a guardianship proceeding.
In a legal guardianship proceeding, parents or another party seeking to obtain a legal guardianship of another person will typically file an application for guardianship that alleges the person, known as the proposed ward, is incapable of managing their personal and financial affairs.
The application for guardianship will typically be backed up by a physician’s certificate of medical examination that provides a mental diagnosis of the proposed ward, as well as answers the questions necessary to establish a guardianship under the state guardianship statutes. Then, the judge will consider the testimony of all of the parties and the certificate to make a decision on whether to grant the guardianship and commit the ward to the care of the applicants.
Why Was I Arrested for Interference When My Child Wants to Stay with Me?
In short, an individual may be arrested for interference even if their child wants to stay with them if they do not have lawful custody of their child. Lawful custody is custody of a child or committed person that is:
- Inherently giving to a child’s natural parents;
- Custody that is awarded by proper authority over a child, such as foster care; or
- Custody that is awarded to a parent or guardian by court order.
What Is the Penalty for Interference of Custody in Georgia if I Am a First-Time Offender?
The legal penalties for interference with custody in Georgia are provided by the Georgia Code. Once again, the Code provides that the offense of interference with custody is committed when a person 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 or intentionally and willfully retains possession of the child or committed person upon the expiration of a lawful period of visitation with the child or committed person.
The penalties for a first offense of interference of custody in Georgia include a misdemeanor charge, which, if convicted, carries legal penalties including:
- A statutory fine ranging from $200 to $500;
- Imprisonment lasting from no less than one month to no more than five months.
It is important to note that repeated convictions of interference with custody will result in heavier penalties. Upon conviction of the second offense of interference with custody, the person convicted shall be guilty of a misdemeanor crime and shall be fined between $400 and $1,000, imprisoned no less than three months and up to 12 months, or a combination of both.
Subsequent offenses will result in the defendant being guilty of an additional criminal charge of a felony, which is punishable by imprisonment for no less than a year and up to five years.
Do I Need a Lawyer with My Charge?
If you have been charged with interference with custody in Georgia, it is in your best interests to immediately consult with an experienced Georgia criminal lawyer. An experienced criminal defense lawyer will be able to help you build a solid legal defense against the charges being brought against you, assert any applicable legal defenses available in your case, and be able to represent you at any in-person criminal proceedings.
