Working out a custody arrangement can be the most difficult part of any divorce involving minor children. Prior to filing for custody in court and during litigation, each parent must allow the other parent access to the child and refrain from withholding contact, even when there is no court-approved custody arrangement in place. In Arizona, denying a parent legal access without justification is known as "custodial interference" and can result in fines and imprisonment.
Arizona law prohibits a parent from blocking another parent's legal right to see his or her child. This is known as "custodial interference" and it is a crime if the violator either knew or should have known that he had no right to deny the other parent access. Arizona courts have interpreted the law to apply after a custody action is filed and throughout the divorce proceeding, as well as in situations where no custody order is in place and no divorce has been initiated. This seeks to prevent a parent from withholding a child from the other parent, without regard to where the parties are in the process of establishing custody.
If a parent denies the other parent access prior to an initial custody determination, either party may file for temporary custody. The court will consider the best interests of the child in making this determination, and a judge is required to take into consideration which parent is more likely to allow frequent and continuing contact with the other parent. Therefore, evidence that one party has withheld the child from the other parent could affect the decision.
Arizona law provides specific defenses to a charge of custodial interference. One defense is that a parent has already filed for custody or requested an order for protection and the custody petition or protection order states the parent believes the child is at risk of harm if left with the other parent. If the parent reasonably believes the child would be in danger of immediate harm if left with the other parent and files a petition for custody in a reasonable amount of time after removing the child, this is also defense to a custodial interference charge. The court will evaluate the reasonableness of the parent's claim based on information and evidence available, such as a history of domestic violence and testimony of witnesses.
It is important to note that individuals who are not the parents of a child may also be charged with custodial interference, such as a friend or family member acting on behalf of the other parent. The severity of the penalty for custodial interference in Arizona depends on who took the child, whether the child was returned prior to an arrest and whether the interference took place within or outside the state (child held outside of state). For example, if the interference occurred within the state and the child was returned without physical injury and prior to an arrest or warrant being issued, the charge is a misdemeanor with punishment up to several months in jail, a fine, and up to three years of probation, unless committed by a person other than the parent, then it is a felony. However, if an arrest occurs or the custodial interference took place outside of Arizona, the charge is a felony and punishment can result in several years of incarceration. The potential length of imprisonment increases if the interference took place out of state.