If 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.1 If s/he takes the child(ren) to another state, the penalties are more severe.2 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.3 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.4
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.5
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 Lawyer page for legal referrals.
1 A.R.S. § 13-1302(A)(2)
2 A.R.S. § 13-1302(E)(2)
3 A.R.S. § 13-1302(D)
4 A.R.S. § 13-1302(C)
5 A.R.S. § 13-1302(B)