Life after separation or divorce can be filled with challenging transitions or adjustments for the involved parties. If children are involved, custody arrangements are often in place to incorporate them into their lives, affecting their and the minor’s lifestyle. As a parent, you may commit mistakes, thus violating the custody order based on the agreement. At times, the violations may be too severe, constituting custodial interference. Similarly, some mistakes can be considered minor, though disruptive enough to cause conflicts between you and the other parent. However, repetitive and intentional acts can constitute custodial interference.
Whereas some violations of custodial interference happen intentionally, others are unintentional. These incidents sometimes occur because parents misunderstand the order or there is a miscommunication, which exacerbates the situation. That is why you want to seek a lawyer’s help if accused of this crime.
At Phoenix Criminal Attorney, we help clients defend against custodial interference charges and can do the same for you. We have decades of combined experience fighting these charges and are confident we can help you obtain the best possible outcome. Call us anytime for a consultation and case evaluation. We will be glad to fight for you.
Custodial Interference Legal Definition
In Arizona, committing custodial interference is an offense under A.R.S. (Arizona Revised Statutes) 13-1302. You can be found criminally liable for custodial interference in various ways. One of the ways you commit this offense is when you take custody of a minor or incompetent person from an institution or someone entrusted to assume legal authority to assume custody (for example, a teacher) when you are aware or have reason to be aware that you do not have the legal right to do so.
Additionally, you can be accused of committing the custodial interference offense if, without any legal right to do so, you:
- Take or withhold a minor from their other parent and deny them access before the judge enters an order establishing custodial rights,
- Take the minor and withhold them from their other parent when joint legal custody is in place.
- Deliberately fail to bring a minor back to their legal custodian after access rights outside of Arizona expire.
ARS 13-1302 provides various exceptions where a parent might keep or take a minor without violating the statute. For example, the law exempts you from a conviction if:
- You have started the legal process of acquiring a protection order against the other parent, and
- That protection order states that you believe the minor faces a risk if they stay with that parent.
Additionally, at times, the law will exempt you if you are the minor's parent, and the following is true:
- You have a reasonable and good faith belief that the minor will face imminent danger or suffer possible physical harm if they are left to stay with their other parent
- You have already filed in court an emergency petition concerning custodial rights or have fallen victim to domestic abuse by the other parent.
Note that Arizona law provides that if a minor is born out of wedlock and paternity is yet to be established, the mother remains the legal custodian of that child and will have all the rights over them, not the child's biological father.
Examples of instances that constitute custodial interference include:
- Refusing to return the child when the court has scheduled parenting time
- When you have company visiting the child without first asking for permission to do so,
- Intentionally restraining the contact that the minor has with the other parent
- Taking the minor before court orders have been established
- Not returning the child on schedule
- Enticing the child to isolate the parent with custody
- Taking the minor when it is not yet parenting time per the schedule in place
These are prevalent examples. However, as every situation is special, you want to consult a lawyer to determine whether your rights have been violated.
Custodial Interference Penalties
Based on the case facts, the prosecution can charge you with custodial interference as follows:
- A class 1 misdemeanor punishable by custody for a maximum of six months
- A class 6 felony carrying a prison sentence of not more than two years
- A class 4 felony carrying a prison sentence not exceeding three and three-quarter years
- A class 3 felony, carrying a prison sentence not exceeding eight and three-quarter years
If you are not the child's parent, parent’s agent, or custodian and are accused of custodial interference, it is considered a class 3 felony. A first-time class 3 felony conviction carries probation with no jail time, a maximum of 12 months in jail, or a prison sentence ranging between two and eight and three-quarter years. If you have one allegeable historical past conviction, the prison sentence will range between three and a half and 16 and a quarter years. If you have two allegeable historical past convictions, the prison sentence will range between seven and a half years and 25 years.
If you are a parent outside of Arizona accused of custodial interference (the minor is made to stay in a different state), it will be considered a class 4 felony. A first-time class 4 felony conviction is punishable by probation with no jail time, a maximum jail term of one year, or a prison sentence ranging between one year and three and three-quarter years. If you have one allegeable historical past conviction, the prison sentence range will be two and a quarter to seven years and six months in incarceration. If you have two allegeable historical past convictions, the prison sentence will range between six and fifteen years.
If you commit the crime within the state of Arizona and do not return the child voluntarily before arrest, it will be deemed a class 6 felony. A first-time class 6 felony conviction can be punishable by probation with no jail time, a maximum of one year, or a prison sentence ranging between four months and two years. If you have one allegeable historical past conviction, the prison sentence will range between nine months and two years and nine months. If you have two allegeable historical past convictions, the prison sentence will range between 2.25 and 5.75 years.
If you commit the crime within Arizona state and you voluntarily take back the minor without physical harm before the issuance of an arrest warrant or actual arrest, it will be deemed a class 1 misdemeanor. The penalty of a class 1 misdemeanor conviction ranges anywhere between zero days and six months of jail time, a court fine not exceeding two thousand five hundred U.S. dollars plus a surcharge of 84 percent, and probation for a maximum of three years (which may include counseling and classes).
The above consequences are harsh. Consequently, it is often only in more severe cases that the prosecution files criminal charges. The initial consequences will almost certainly lead to losing present parenting rights. It is always essential to remember that the authorities will take anything you do that is against the child’s best interests very seriously.
Defending Against Custodial Interference Charges
If accused of custodial interference, you can fight the charges against you by mounting a compelling legal defense strategy. Custodial interference defenses can be divided into statutory and common defenses. Statutory defenses include arguing that:
- The law exempts you from prosecution
- You believed you had the right to keep or take the child
- You are the child's parent
Exemption from Prosecution
Remember that some exceptions are described under custody interference law that permits a parent to keep or take a minor from a lawful custodian. You can try to contest the charges against you by proving that you fit under one of the exemptions. That is:
- You had already filed a custody petition or started obtaining a protection order, and the protection order states that you believe the minor was in danger if left under the other parent's care. The child's safety and best interest are always factors under the law.
- You have a reasonable and good faith belief that the minor will face imminent danger or suffer possible physical harm if left to stay with the other parent.
- You have already filed in court an emergency petition concerning custodial rights or have fallen victim to domestic abuse by the other parent.
You Are the Minor's Parent
It is a defense against custodial interference charges if you are the minor's parent, are entitled to child custody, and have a reasonable and good faith belief that taking the minor was needed to protect them from imminent danger. This will also apply if you are the other parent’s domestic violence victim and have a reasonable and good faith belief the minor would be subject to imminent danger if they remained in the other parent's custody.
You Have the Right to Keep or Take the Child
Also, remember that you are only criminally liable for violating A.R.S. 13-1302 if you did not have the right to keep or take a minor. That means you can always challenge the case against you by submitting evidence that you had the right to the minor. The evidence you can submit can include a legal document indicating some visitation or custodial rights.
The above defenses are the most commonly used to fight against custodial interference charges. Remember, it is critical to prove you have a reasonable belief. You can accomplish this through an in-depth investigation that involves interviewing several witnesses who frequently witnessed the abuse or violence.
Apart from interviewing witnesses, it is also essential to acquire all the daycare records that may help prove that when the other parent dropped the child off at the daycare, they (the child) had some form of injury. You would be surprised by the number of daycare facilities that keep comprehensive records detailing simple injuries such as bruises and scrapes.
The common defense strategies for A.R.S. 13-1302 violations that an attorney may argue in any other case are several and diverse. They include:
Violation of Miranda Rights
The most prevalent defense applicable is a violation of Miranda rights. Under Arizona law, whether an inculpatory statement (a statement that admits culpability) is admissible in court as evidence depends on the standard of voluntariness. If your lawyer can prove that law enforcement officers coerced you (tricked or intimidated you) to make an inculpatory statement, confess, or never appropriately read you your Miranda Rights, they can suppress that confession or statement and other evidence collected as a result of the statements.
False Accusations
Sadly, one parent can falsely accuse the other of A.R.S. 13-1302 violation in Arizona family law proceedings. They do this often to gain the upper hand in gaining or keeping custody of the minor or receiving a favorable parenting plan. Thus, you can always argue that you were unfairly blamed if accused of custodial interference.
You Were Denied the Right to an Attorney
Denial of the right to an attorney is another prevalent defense that lawyers often raise. This happens when an accused is detained, and when they request to talk to their lawyer, they are denied that chance, and interrogation continues.
Police Errors
Finally, another common defense is exposing misleading or sloppy police reports, including false statements, misstatements, inaccurate reconstruction of the crime scene, and incorrect photo line-ups.
Other common defenses include contesting the legal nature of the search warrant against you, if any, or whether any forensic mistakes were made during the investigations into your case. Based on the type of charges you face, this may include exposing erroneous procedures regarding urine, breath, and blood testing; DNA testing; fingerprint analysis; forensic financial accounting reviews; cloning hard drive/computer analysis procedures; et cetera.
It is critical to hire an experienced custodial interference attorney with knowledge of the specific defense strategies and common defenses that can apply in your case to defend you.
Similar Crimes to Custodial Interference
Three crimes are similar to the crime of custodial interference. They are:
- ARS 13-3623, Child Abuse
- ARS 13-1304, Kidnapping
- ARS 13-2810, interfering with judicial proceedings
ARS 13-2810, Interfering With Judicial Proceedings
ARS 13-2810 defines the crime of interfering with judicial proceedings as committing an act or failing to do an act in relation to personal responsibilities concerning court proceedings. For example, you can break this section by declining to provide a sworn statement during court proceedings.
ARS 13-3623, Child Abuse
In Arizona, child abuse is criminalized under ARS 13-3623. You commit this crime when, under given circumstances, you:
- Cause a minor to sustain physical injury
- Permit a minor to be hurt, or
- Permit a minor to be put in or exposed to a situation that endangers their well-being or health.
ARS 13-1304, Kidnapping
ARS 13-1304 defines kidnapping as knowingly restraining someone else and doing so with a specific intent (for example, the intention to keep the victim as a hostage or for ransom).
Like kidnapping, custodial interference usually involves restraining a child. However, in custodial interference, you need not act with a specific intention to be convicted.
When You Can Claim A.R.S.13-1302 Violation
Court orders must be established first to accuse a person of custodial interference. That is because if the court has not adjudicated parenting time and lawful decision-making rights, there will be no orders to be violated and no weighty legal action you can pursue until the court signs off on the orders.
When the Other Parent Is Considered to Have Interfered With Custody
Often, custody orders are disputable. However, if a court-issued order is already enforced, you have the right to call the police when the other parent declines to comply with the set parenting plan. You must also report their actions to the court.
Minor custodial interference actions will likely warrant a warning from the police and the enforcement of the agreed parenting plan. When a parent does not stop interfering with custody, law enforcement officers will document the conduct and, if necessary, can conduct an arrest. Where custodial interference is extreme, the court has the discretion to make these adjustments to the parenting plan in place:
- Visits that a third party must supervise
- Restriction or loss of visitation and custody rights
- Transfers at a neutral preset location (at times a police station)
- Fines and penalties
- Criminal repercussions.
In certain instances, the court permits a parent’s non-compliance with the parenting agreement if these facts are true:
- Disruption to the plan that has previously been agreed upon.
- A parent is safeguarding the minor from harm.
- Events both parents lack control over
It is undoubtedly frustrating to address custodial interference issues. However, courts will safeguard your rights and be on your side. The courts will not just permit the other parent to keep violating an established parenting plan. Your child's well-being is of major concern, and your concerns will, too, be taken very seriously.
Find an Experienced Custodial Interference Attorney Near Me
If you are charged with custodial interference, do not gamble with your freedom, and contact an attorney immediately. Given that a professional attorney understands the legal language of the custodial interference crime, they are in a better position even to have you acquitted of all charges. At Phoenix Criminal Attorney, we boast experienced, aggressive, and tough criminal defense lawyers who will do everything legally possible to fight for you and achieve the most favorable outcome for your case. Call us today at 602-551-8092 for a complimentary consultation and case evaluation regarding your custodial interference charges in Phoenix.
