Wednesday, February 18, 2015

State Parental Kidnapping Information

State Parental Kidnapping Information

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This page includes information that is specific to this state, about parental kidnapping, also called custodial interference. There is also a page for general information that you may find helpful. Custody and kidnapping are particularly complicated and it is important to try to find an experienced lawyer to help you with your case.

back to topIf a legal decision-making and parenting time order is in place, can I take my kids away from the other parent?

It depends.  Generally, whether or not you can take your child out of the state for a period of time may depend on what your custody order says.  The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address this issue at all.  The judge may require that you post a bond or other security conditioned upon the return of the child to the state.
If you have a court order that gives both parents joint legal custody, and you take, entice or withhold the child from the physical custody of the other parent, it can be possible that you may be charged with the crime of custodial interference.*  The law is complicated and the risks are high -- it is strongly recommended that you get the advice of a lawyer before leaving with your child if at all possible.  Go to our AZ Finding a Lawyer page for legal referrals.

* A.R.S. § 13-1302(A)(3)
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back to topIf there is no legal decision-making and parenting time order, can I take my kids away from the other parent? Is it against the law?

In Arizona, a person can be charged with the crime of custodial interference even before there is a court order regarding legal decision-making and parenting time or if s/he has a joint legal decision-making order with the other parent if s/he takes, entices (persuades) or withholds any child from the other parent and denies that parent access to any child.*   If s/he takes the child(ren) to another state, the penalties are more severe.*1  However, there are some exceptions in the law, which involve a case where the parent has filed an emergency petition regarding custodial rights with the superior court and has received a hearing date from the court.*2  The law is complicated and the risks are high -- please get the advice of a lawyer before leaving with your child if at all possible.

If a domestic violence victim is charged with this crime, it could be a defense to the crime if s/he can prove that:
  • s/he has begun the process to get an order of protection or s/he files a petition for legal decision-making within a reasonable period of time and the order of protection or legal decision-making petition states his/her belief that the child was at risk if left with the other parent; AND
  • s/he either:
    • has a good faith and reasonable belief that the taking, enticing or withholding of the child is necessary to protect the child from immediate danger; OR 
    • s/he 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.*3
However, once a person is charged with a crime, s/he may lose custody and suffer many consequences even if s/he may later be able to prove that s/he has a valid defense.  It is best to get legal advice before leaving to make sure that your planned behavior would not violate the law. 

Note: In the context of custodial interference, if a child is born out of wedlock, the mother is considered to be the legal custodian of the child until paternity is established and legal decision-making responsibilities are determined by a judge.*4
 
Again, the law is complicated and the risks are high -- it is strongly recommended that you get the advice of a lawyer before leaving with your child if at all possible.  Go to our AZ Finding a Lawyerpage for legal referrals.

* A.R.S. § 13-1302(A)(2)
*1 A.R.S. § 13-1302(E)(2)
*2 A.R.S. § 13-1302(D)
*3 A.R.S. § 13-1302(C)
*4 A.R.S. § 13-1302(B)
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back to topWhat can I do if I think my spouse/ex will kidnap my child?

If you think your spouse/ex will abduct your child, you should immediately contact a lawyer who can help you try to prevent the abduction. For a list of legal resources, please see our Finding a Lawyerpage under the Where to Find Help tab at the top of this page.
If you can convince a judge that your concerns are reasonable based on the facts, the court may take steps to prevent the other parent from abducting your child. If you and your child are in immediate danger, or if you have been threatened with harm by your spouse/ex, you may file an order of protection on behalf of your minor child and on behalf of yourself.  Please see our page onRestraining Orders for more information.
If you think that the other parent may try to take your child out of the country, you could ask the court to seize your child's passport so s/he cannot leave the country.  See How can I keep the other parent from taking my children out of the country? for more information about international kidnapping.

http://www.womenslaw.org/laws_state_type.php?id=10636&state_code=AZ