What is Custodial Interference in Arizona?
A.R.S. § 13-1302 defines the crime of “custodial interference.” This occurs when a person knowingly takes away a child (or an incompetent adult) from the person who has lawful custody over the child. This can arise frequently in cases involving shared custody of a child by two parents that are divorced. It can occur when one parent takes a child from the other parent’s custody in violation of a court order, or withholds custody from the other parent.
Depending on the circumstances of the custodial interference, the crime can be charged as a class 2 felony (one of the most serious felonies in Arizona) to a misdemeanor.
A.R.S. § 13-2505 Defined
Under ARS 13-1302, a person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person:
- (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.
The severity of the crime depends on numerous circumstances, in which case it may be a class 3 felony, class 4 felony, class 6 felony, or class 1 misdemeanor. Custodial interference will be charged at different levels under these circumstances:
- Class 3 felony: If committed by a person other than the parent or agent of the parent or custodian or agent of the custodian.
- 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.
- Class 6 felony: If committed by a parent or agent of the parent or custodian or agent of the custodian.
- 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.
Note: If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.
Defenses to Custodial Interference
A.R.S. 13-1302 provides certain statutory defenses to the charge. If a statutory defense can be proven, then even if the technical elements of the crime have been met, the defendant must be found not guilty. The statutory defenses to custodial interference are:
(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:
- Has a good faith and reasonable belief that the taking, enticing or withholding is necessary to protect the child from immediate danger.
- 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.
(3) The defendant is the child’s parent and either of the following apply:
- The defendant has filed an emergency petition regarding custodial rights with the superior court and has received a hearing date from the court.
- The defendant has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.
Penalties for Custodial Interference
The penalties for a conviction under ARS 13-1302 depend on whether it is charged as a class 2, 3, or 6 felony or charged as a misdemeanor.
Penalties for a class 2 felony
- With no prior felonies: probation or 3 to 12.5 years in prison
- With one prior felony: 4.5 to 23 years in prison
- With two prior felonies: 10.5 to 35 years in prison
Penalties for a class 3 felony
- With no prior felonies: probation or 2 to 8.75 years in prison
- With one prior felony: 3.25 to 16.25 years in prison
- With two prior felonies: 7.5 to 25 years in prison
Penalties for a class 6 felony
- With no prior felonies: probation or .33 to 2 years in prison
- With one prior felony: .75 to 2.75 years in prison
- With two prior felonies: 2.25 to 5.75 years in prison
Penalties for a class 1 misdemeanor
- Up to 6 months in jail
- Up to $2500 in fines
How Salwin Law Group Can Help You
If you have been charged with custodial interference, an experienced defense attorney can help defend you. We offer free consultation and can discuss your case with you today. Together we can help you get your life back.