ARS § 13-1302 is the Arizona statute that defines the crime of custodial interference. You commit this offense when you, without any legal right, interfere with another person’s custody rights – either in relation to the custody of a child or an incompetent person.
Violating this law can lead to a Class 3 felony charge punishable by almost nine years in state prison.
- a divorced parent, without legal custody rights, taking a child from the other parent.
- a child’s parent, with temporary custody rights, failing to return a child to the other parent on time.
- prior to the entry of a court order, which would set forth custodial rights between a couple, one parent takes a child and denies the other parent access to him/her.
Criminal defense lawyers draw upon several legal strategies to help clients challenge custodial interference charges. Some common ones include attorneys showing that the defendant:
- is exempt under the law,
- believed he/she had a legal right to take or keep a child, and/or
- was falsely accused.
Depending on the facts of the case, a violation of ARS 13-1302 is charged as either a:
A Class 3 felony is the most severe charge and is punishable by up to eight years and nine months in state prison.
A Class 1 misdemeanor is the least severe charge and is punishable by custody in jail for up to six months.
In this article, our criminal defense attorneys will discuss what the law is under these statutes, defenses available if charged, the penalties for a conviction, and related crimes.
1. How does Arizona law define “custodial interference”?
Per Arizona’s criminal laws, there are a few different ways in which a person is found guilty of custodial interference.
Most people commit this crime when they, without any legal right, take or keep a child or a person that is incompetent from the lawful custody of another person or institution.i
In addition, a person can commit custodial interference if, without legal right to do so, the person:
- takes or withholds a child from the other parent prior to the entry of a court order determining custodial rights,ii
- takes or withholds a child from the physical custody of another parent when the two parents share joint legal custody over the child, and
- intentionally fails to return a child to his/her lawful custodian after the expiration of access rights outside the State of Arizona.iii
The language of ARS 13-1302 sets forth a few exceptions when a parent may take or keep a child without breaking the law.
For example, some people are exempt from the law if:
- they have begun the process of obtaining an order of protection from the other parent, and
- the order of protection states the defendant’s belief that the child was at risk if left with the other parent.iv
Further, sometimes people are exempt from the law if they are a child’s parent and both of the following apply:
- they have filed an emergency petition regarding custodial rights with the court, or are a victim of domestic violence by the other parent, and
- they have a good faith and reasonable belief that the child will be in immediate danger, or face possible physical injury, if the child is left with the other parent.v
Note that, for the purposes of this statute, if a child is born out of wedlock, the mother is the legal custodian of the child until the court establishes paternity and custody.vi
2. Are there defenses to ARS 13-1302 charges?
People accused under this statute have the right to contest the accusation with a legal defense. Three common defenses include defendants showing that they:
- are exempt under the law.
- believed they had a legal right to take or keep a child.
- were falsely accused.
2.1 Exempt under the law
Recall that a few exceptions are listed within ARS 13-1302 that allow a parent to take or keep a child from a legal custodian. A defendant can try to challenge a charge by showing that he/she fits into one of these exceptions.
2.2 Legal right to take or keep a child
Also recall that people are only guilty of custodial interference if they had no legal right to take or keep a child. This means defendants can always contest a case by providing evidence that they had a legal right to a child. Evidence of this nature is often a legal document showing some custodial or visitation right.
2.3 Falsely accused
Unfortunately, one parent often falsely accuses the other parent of custodial interference during Arizona family law proceedings. Parents do this to try and gain an advantage in keeping or gaining custody of their child or receiving a favorable parenting plan. Therefore, accused people can always raise the defense that they were unjustly blamed for a crime.
3. What are the penalties?
Depending on the facts of a case, a prosecutor can charge a violation of this section as either a:
- Class 3 felony, punishable by a state prison term of up to eight years and nine months,
- Class 4 felony, punishable by a prison term of up to three years and nine months,
- Class 6 felony, punishable by a prison term of up to two years, or
- Class 1 misdemeanor, punishable by a jail term of up to six months.vii
4. Are there similar offenses?
There are three crimes similar to custodial interference. These are:
- child abuse – ARS 13-3623,
- kidnapping – ARS 13-1304, and/or
- interfering with judicial proceedings – ARS 13-2810.
4.1 Child abuse – ARS 13-3623
Per ARS 13-3623, child abuse is a crime where people, under certain circumstances:
- cause a child to suffer physical injury,
- allow a child to be injured, or
- allow a child to be placed in a situation that endangers the child’s health or well-being.
Unlike with custodial interference, child abuse requires that a minor either:
- suffer some physical injury, or
- get exposed to some endangerment to his/her well-being.
4.2 Kidnapping – ARS 13-1304
Under ARS 13-1304, kidnapping is the offense where people knowingly restrain another person and do with some specific intent in mind (for example, an intent to hold the “victim” for ransom or as a hostage).
As with kidnapping, custodial interference often involves the restraining of a minor. However, the defendant in a custodial interference case does not have to act with any other specific intent to be guilty of a crime.
4.3 Interfering with judicial proceedings – ARS 13-2810
Per ARS 13-2810, interfering with judicial proceedings is the crime where people commit some act or fail to commit an act in relation to personal obligations regarding a court proceeding.
For example, a person can violate this law by refusing to provide a sworn statement in a court proceeding.
A violation of this statute is considered a less severe crime than a violation of ARS 13-1302. Under Arizona law, interfering with a judicial proceeding is always charged as a Class 1 misdemeanor.
- ARS 13-1302. The language of the statute reads as follows:
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.
B. 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.
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.
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.
See also Gutierrez v. Fox, 242 Ariz. 259 (2017).
- See, for example, State v. Wood, 198 Ariz. 275 (2000).
- ARS 13-1302A2-4.
- ARS 13-1302C1.
- ARS 13-1302D.
- ARS 13-1302B.
- ARS 13-1302E.