Sharing custody of your children after a divorce can sometimes be an amicable and agreeable situation for both parents. You both know what times you are allowed with your child, when to drop them off or pick them up – an all-around healthy family despite the separation. This is not always the case, however, as there can often be animosity between the two parents over the child’s rewards or punishments, the amount of time they’re allowed to spend with the child, or how the child is raised. This is especially challenging when the parents live in different states, or if one parent has an opportunity (like a job offer) or an obligation (like caring for a sick family member) that would require moving out of Tennessee. When this is the case, it can be tempting to simply take things into your own hands.
Unfortunately, taking such an action can see you fined and jailed for what is called custodial interference. You should follow the court’s order on child custody, but if you need that changed because of one reason or another, you should contact a child custody lawyer so you can do so legally.
How does Tennessee define custodial interference?
According to T.C. § 39-13-306:
Custodial interference includes both removing the child from the state in violation of a custody order or harboring or hiding the child inside or outside Tennessee. The abductor must know that the abduction or concealment violates a court order. A person also commits custodial interference by detaining the child after the expiration of a period of lawful visitation. A person accused of custodial interference can defend the removal or concealment by showing that he or she reasonably believed that the failure to remove the child would have subjected the child’s health and safety to a “clear and present danger.”
In simpler terms, removing your child from their custodial parent in contradiction to your parenting plan, and taking them out of state is custodial interference. You can defend yourself from the accusation of custodial interference if you can provide proof that caused you to believe that if you had not removed your child from that parent, the child would have been in a state of “clear and present danger.” For example, if you have reason to believe that your child is being abused or neglected, you should have a solid defense against this particular charge.
What are the penalties for custodial interference?
While you may believe your actions to be noble and in the best interest of the child, you should be aware of the penalties that come with custodial interference. Under T.C. § 39-13-306, “custodial interference is a Class E felony, unless the person taken from lawful custody is returned voluntarily by the defendant, in which case custodial interference is a Class A misdemeanor.”
- Class E felonies are punishable by a sentence of “not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute,” according to C. §40-35-111
- Class A misdemeanors, on the other hand, are far less penalizing, with sentencing amounting to no “greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute.”
Why do I need a Maryville child custody attorney to defend myself?
First of all, you want to avoid incarceration for the same reason you want to take the child from the other parent: for the best interest of your child. In prison, you do not have the same rights you have outside. You cannot help your child from there. Before you act on your feelings and your need to protect, consult a lawyer. A lawyer can help you present your defense against a charge of custodial interference.
With the help of a lawyer from Shepherd & Long, you could show the court:
- That you reasonably believed that your child was in danger from the other parent at the time of their removal; and that failure to remove them from their situation would have left the child in an unsafe environment.
- That you returned the child to the custodial parent before an arrest occurred or a warrant was issued.
- That you had permission from your co-parent to take your child out-of-state for a specific event, like a family reunion or a trip.
- That you never actually left the state with your child.
It is in the best interest of yourself and your child to approach the court first instead of acting under your own authority. If you are looking to modify your custody order, our Maryville attorneys can help you. Legally, a parent who wants to move more than 50 miles away has to bring that request to the court first, anyway, though some couples may forgo this step because they don’t think it’s “that big of a deal.” But it IS a big deal. Child custody, like child support, is part of a court order. Failing to follow the proper protocol can land you in hot water later.
If you have reason to believe that your child is being abused, then you definitely want an attorney. We can help you seek a temporary order of protection to get your child out of that situation as quickly as possible. During your hearing, we can also request an extended order of protection for your child.
Making sure your partner follows the orders of custody and the agreed upon custody plan can be a complicated situation. It may feel right to act on your urge to protect, but in the end, it may simply lead to a more difficult and unsafe situation for both you and your child. If you are accused of custodial interference, and you and your child are not in immediate danger, returning your child to the custodial parent is the best thing you can do. In either case, if you believe the other parent of your child is breaking their court orders, then the smartest thing you can do is seek out the advice of an experienced child custody lawyer. At Shepherd & Long, we know how complex child custody can be, and we will ensure that not only your defense is best presented, but also that if there is any harm being done to your child, it will be brought out into the light of the courtroom. To schedule a free consultation with one of our child custody attorneys, call us in Maryville at 865-982-8060, or use our contact page. We serve Blount County and East Tennessee.