Custodial interference can simply be annoying to downright criminal and dangerous. This article will share with you some of the examples of custodial interference as well as the legal statues.
What is custodial interference?
A.R.S. § 13-1302 (A) states:
A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:
1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
3. If the person is one of two persons who have joint legal custody of a child, takes, entices or withholds from physical custody the child from the other custodian.
4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.
Some examples regarding the above would consist of:
- A parent refuses the other parent to see or have access to the child, prior to the official custodial court order.
- A parent refusing to bring a child back from allotted and scheduled parenting time.
- Refusing court ordered parenting time to the other parent.
- Taking the child when it is not that parents time and specifically without permission of the scheduled parent.
- Constant issues with bringing the child back in a timely manner after scheduled parenting time is over.
Who has custody when the child is born out of wedlock?
Pursuant to A.R.S. § 13-1302 (B):
Is custodial interference punishable under the law?
The answer is an emphatic “yes”. As mentioned in A.R.S. § 13-1302 (E):
E. A violation of this section is:
1. A class 3 felony if committed by a person other than the parent or agent of the parent or custodian or agent of the custodian.
2. Notwithstanding paragraph 3 of this subsection, a class 4 felony if the child or incompetent person is taken, enticed or kept from lawful custody out of this state by the parent or agent of the parent or custodian or the agent of the custodian.
3. A class 6 felony if committed by a parent or agent of the parent or custodian or agent of the custodian.
4. A class 1 misdemeanor if the child or incompetent person is voluntarily returned without physical injury by the parent or defendant or the agent of the parent or defendant no later than forty-eight hours after the parent or defendant takes, entices or keeps from lawful custody the child or incompetent person.
Is there any defense regarding custodial interference?
Yes, and once again the statute shares when there may be defensible actions in a custodial interference case A.R.S. § 13-1302 (B):
C. It is a defense to a prosecution pursuant to subsection A, paragraph 2 if both of the following apply:
1. The defendant has begun the process to obtain an order of protection or files a petition for custody within a reasonable period of time and the order of protection or petition states the defendant’s belief that the child was at risk if left with the other parent.
2. The defendant is the child’s parent and has the right of custody and the defendant either:
(a) Has a good faith and reasonable belief that the taking, enticing or withholding is necessary to protect the child from immediate danger.
(b) Is a victim of domestic violence by the other parent and has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.
D. Subsection A, paragraphs 2 and 3 do not apply to a person who is the child’s parent if both of the following apply:
1. The person has filed an emergency petition regarding custodial rights with the superior court and has received a hearing date from the court.
2. The person has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.
So when do I need to speak with an attorney?
We often suggest that it is always good to speak with a family law attorney regarding any custodial action that may require legal or court action. So no matter which side you may fall under, if there is any evidence that custodial interference is taking place we urge you to contact an experienced family law attorney to discuss the best course of action.
At Duenas Eden Law, we are experienced and trusted family law attorneys in Phoenix, Arizona. Our Office in the Ahwatukee area of Phoenix, AZ and we serve the communities of Chandler, Tempe, Laveen, Mesa, Gilbert and San Tan Valley. Call today: (480) 285-1735.
Duenas Eden remains open and available to help during these trying times. We are back in the office and offering videoconferencing appointments as much as possible. Per CDC guidelines, we are wearing masks and request that anyone visiting our offices do so as well. If you feel ill, please let us know and we will be happy to reschedule your appointment.