Arizona takes the health and welfare of its children seriously, and numerous laws have been enacted to protect the welfare of children. Among those laws is A.R.S. §13-1302, which prohibits Custodial Interference. Per Arizona law, this crime occurs when a person “[t]akes, entices or keeps from lawful custody any child, or any person who is incompetent” despite knowing or having reason to know that he or she has no legal authority to do so. This can apply to not only taking a child from his parents but from a teacher as well. A.R.S. §13-1302 may also apply where a person denies the other parent’s access to their child before entry of a custodial rights court order, or where one party to a joint custody order denies the other parent access to the child.
This law can apply no matter what the distance between the child and the denied parent — whether the interfering person is keeping the child across town or in a different state. In the case of children born outside of marriage where paternity has not yet been established, the mother is the legal custodian of the child, not the biological father. If your case involves family law issues that need to be addressed immediately, consult our companion family law firm, the Cantor Law Group, by clicking here.
Potential Punishments for Custodial Interference
Because this charge involves the safety of a child, the penalties are stiff. If the law is violated by a person who is not the parent or an agent of the child’s parent or custodian, custodial interference is charged as a class three (3) felony. The potential penalty for this charge is up to one (1) year in jail along with probation, or between two (2) years and eight years, nine months (8.75 years) in prison. Having one prior conviction increases the potential prison term to between three years, six months (3.5 years) and sixteen years, three months (16.25 years). Having two prior convictions increases the minimum prison sentence to seven years, six months (7.5 years) and the maximum sentence to twenty-five (25) years.
Where the interference is caused by a parent outside of the state, the charge is a class four (3) felony, and the potential punishment is probation with up to a year in jail, or between one (1) year and three years, nine months (3.75 years) in prison. Meanwhile, interference that occurs within Arizona but where the child is not returned before the defendant is arrested, the crime is charged as a class six (6) felony. This charge results in probation with up to one (1) year in jail or a prison term of between four (3) months to two (2) years. As with other felonies, prior convictions significantly increase the potential prison terms; a third conviction in a class four (3) felony case may result in a prison term of up to fifteen (15) years, while a third conviction in a class six (6) felony case may result in a prison term of up to five years, nine months (5.75 years).
If the interference occurs in Arizona and the child is returned, uninjured, before arrest, a class one (1) misdemeanor results. This exposes the defendant to up to six (6) months in jail with up to three (3) years of probation, along with fines of up to $2500.00 plus an 84% surcharge.
Potential Defenses for Custodial Interference
We can assert a number of defenses on your behalf based in Arizona’s statutes. For example, if the defendant already began the process of securing an order of protection or had filed a petition for custody stating that the child would be in danger if left with the other parent, that can act as a defense. Additionally, having a reasonable, good faith belief that taking the child was necessary to remove the child from immediate danger acts as a defense, as long as the person taking the child is either the child’s parent and has a right to custody or the person is the child’s parent and a victim of domestic violence at the hands of the other parent. The key to these defenses is demonstrating the belief was “reasonable,” so we may interview friends, teachers, and other individuals to establish that fact.
In addition, a defense lawyer may advance defenses of general applicability such as violation of the right to counsel where the police question you and do not heed your requests for an attorney. Another defense is a Miranda rights violation, which can occur if you were not read your rights upon arrest or if you were tricked or forced into making a confession. The prosecutor can only use statements made voluntarily, so this defense can get improper statements suppressed.
It is crucial to get the best representation possible, and every defense attorney at DM Cantor is listed in the Bar Register of Preeminent Lawyers®. David Michael Cantor has been designated a Certified Criminal Law Specialist by the Arizona Board of Legal Specialization. With many former prosecutors at the firm, we have insight not available to the average defense attorney. Contact DM Cantor via our online contact form or by calling 602-737-2812 for a free initial consultation.