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Can Fathers Be Arrested for Interference with Custody?

The issue of child custody and visitation between an unwed mother and father can be complicated by a variety of issues, especially when the parents do not see eye to eye. Unfortunately, when there is a disagreement between unwed parents as to visitation the non-custodial parent could be exposed to other legal consequences. This is due to the fact that without legitimation of the child by the father his rights are extremely limited when it comes to raising the child. Essentially, the process of legitimation legally classifies the father as the biological parent and gives him an opportunity to petition the court for some form of custody, be it joint or full.

Until the unwed father goes through the legitimation process, he does not have any enforceable rights as to the child. In fact, in this instance, if there is ever a dispute as to who gets the right to visitation the mother of the child controls due to the lack of a legitimized child. This has created unforeseen circumstances where an unwed father could expose himself to the criminal charge of interference with custody if:

  • the custodial parent reports the matter to the police
  • the father refuses to return the child
  • the father does not have some form of legal custody of the child

Under Georgia statute O.C.G.A §16-5-45 Interference with Custody, a person commits the offense of interference with custody when without lawful authority to do so,

  • the 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
  • knowingly harbors any child or committed person who has absconded

The key provision here is knowingly taking a child away from the individual who has lawful custody of such child. Under the law, a child who is not legitimized will typically be in the legal custody of their biological mother. Therefore, a father who has physical custody of a child without the consent of the mother would be in violation of this criminal statute. This can happen even when the father is given permission to take the child but said permission is rescinded or the father keeps the child longer than the time originally agreed to. In other words, there could be probable cause for an arrest. Prosecutors, criminal defense attorneys and child custody attorneys see this scenario in cases where there is a dispute between unwed parents and the father either takes the child out of state and or refuses to comply with the mother’s request to return the child. In this instance, responding officers will only be required to look at whether or not probable cause exist to arrest.

Since the statute only requires keeping the child away from the individual with lawful custody, the unwed father exposes himself to considerable risk if there is ever a dispute regarding visitation with the mother. Few of these are fully prosecuted. This is because these matters often come down to a custody dispute and not a criminal matter. Nonetheless, it does not eliminate the substantial risk and inconvenience of being arrested. The best way to prevent custody disputes is to have a detailed parenting plan issued by the court. This is achieved during the legitimation process where the court will determine the biological nature of the relationship between father and child, custody and visitation. Once the court issues the final decree all parties will have clear instructions as to how visitation and custody will work.

The Faucette Law Firm, LLC represents clients in all family law and divorce-related matters such as contested and uncontested divorce, child custody, child visitation, modifications, alimony and legitimations. We work with fathers to ensure that they know all of their legal rights and are guided through the legal process. We serve Atlanta, Fulton, Cobb, Gwinnett, DeKalb, Douglas, Carroll, Coweta, Fayette, Henry and Clayton. Contact our law office today for a consultation.

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