Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-1302, "Custodial Interference" occurs when a person who knows or has reason to know that they have no legal right to do so, takes custody of a child from another person who is either incompetent, or who is entrusted to have lawful authority to have custody of the child (i.e., a school teacher). In addition, it can occur if the child was taken before a Court Order was entered determining custodial rights, and that person withholds the child from the other parent and denies them access. Lastly, it can occur when there is Joint Legal Custody, yet one of the parents takes the child and withholds the child from the other guardian. This sometimes occurs when there is permission to take the child out-of-state, but the other parent intentionally fails or refuses to return or impedes the return of the child to the lawful custodian. WARNING: Any child born out of wedlock, before paternity is established, then the mother is legal custodian and she will have the right to the child - not the biological father.
If the Custodial Interference is accomplished by a person other than the parent or agent of the parent or custodian, then this is a class three (3) felony. For a first offense class three (3) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison range of two (2) years to eight and three quarters (8.75) years in prison. If the person has one (1) allegeable historical prior conviction then the "prison only" range is three and one half (3.5) years to sixteen and one quarter (16.25) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is seven and one half (7.5) years to twenty-five (25) years of incarceration.
If the Custodial Interference occurs outside of this state (i.e., the child is kept in another state), then this is a class four (4) felony. For a first offense class four (4) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of one (1) year to three and three quarters (3.75) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is two and one quarter (2.25) years to seven and one half (7.5) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is six (6) years to fifteen (15) years of incarceration.
If the Custodial Interference occurs within Arizona, and the child is not voluntarily returned prior to arrest, then this is a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
If the Custodial Interference occurs within Arizona, and the child is voluntarily returned without physical injury prior to an arrest or issuance of an arrest warrant, then this is a class one (1) misdemeanor. The range of punishment for a class one (1) misdemeanor is probation with anywhere from zero (0) days in jail up to six (6) months in jail, and a fine of up to $2500.00 plus an 80% surcharge.
Custodial Interference has numerous statutory defenses. For example, it is a defense to the charge if the Defendant had already begun the process to obtain an Order of Protection or filed a Petition for Custody within a reasonable amount of time and it states within those documents that it is the Defendant's belief that the child was at risk if left with the other parent. Obviously, the "best interest and safety" of the child is always paramount to the law. It is also a defense if the Defendant is the child's parent, has the right to custody, and has a good faith and reasonable belief that the taking of the child was necessary to protect the child from immediate danger. This also applies if the Defendant is a victim of Domestic Violence of the other parent and has a good faith and reasonable belief that the child would be in immediate danger if left in the custody of the other parent. These are the most common defenses to this charge, and it is important to show that the Defendant's belief was "reasonable". This can be accomplished by a thorough investigation involving interviews of numerous witnesses who often saw the abuse. It is important to not only interview these witnesses, but also to obtain all daycare records which might show that the child was received by daycare with some type of injury when dropped off by the other parent. You would be amazed by how many daycare facilities keep detailed records which include injuries as simple as scrapes and bruises.
The "Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a "Voluntariness" standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, "Denial of Right to Counsel" is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / "cloning hard drive" procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®), with the most Certified Criminal Law Specialists of any AV® rated Arizona Law Firm, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it's lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.
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