We often think of kidnapping as something done by strangers using force or violence. However, there is such a thing as parental kidnapping, where a parent takes their own child without authorization, particularly when they keep the child away from the other parent. What constitutes parental kidnapping in Arizona? Could your ex-spouse be charged with parental kidnapping? Here’s what Arizona law says.
Custodial Interference Or Parental Kidnapping Law In AZ
“Custodial interference” happens when one parent tries to disrupt the child custody rights of the other parent. Examples are limiting the child’s contact with the other parent, and failing to hand over the little one on schedule.
A more serious form of custodial interference is parental kidnapping. This is loosely defined as taking the child somewhere in violation of the custody order. Whether the parent crosses state lines or merely relocates within the state, it may be considered kidnapping if the child custody order does not authorize it.
Arizona Code 13-1302 is the state law that defines custodial interference. It gives us a better idea of what can be considered parental kidnapping in Arizona:
- If a parent takes, entices, or withholds the child from the lawful custodian
- If a parent takes, entices, or withholds the child from the other parent before the court enters a custody order
- If a parent shares legal decision-making authority with the other parent, but physically withholds the child from that parent
- If a parent intentionally fails or refuses to hand over the child to the lawful custodian, or obstructs the child’s return to that custodian.
Note that the lawful custodian is not always another parent. It could be a third party such as a grandparent, a relative, or an institution. Some parents believe that they have a greater right to keep their child than a third party does. This is not always true. If the custody order names that third party as a legal custodian, the parent cannot just keep the child away from them.
It is extremely unwise to risk getting charged with parental kidnapping. Depending on the circumstances, this felony can incur prison time of up to four years, probation of several years, and a fine of $150,000.
How Far Can A Parent Move With Joint Custody In Arizona?
We mentioned above that a parent’s relocation may be lawful or unlawful depending on whether the child custody order allows it. This can get confusing if the custody order does not specifically address this issue. However, just because the document does not have a relocation clause doesn’t mean a parent is free to take their child anywhere. Consider these scenarios:
- If you and your ex-spouse have joint physical custody and/or joint legal decision-making authority, your ex must notify you of their plan to move. If you don’t agree, you may request a hearing where a judge can decide on the issue. The court’s decision would only affect their relocation with the child. They would still be free to move anywhere if they don’t take the little one with them.
- Distance is not the only factor you should consider. Perhaps the other custodian is taking the child somewhere nearby, but if you think the area is unsafe, unsuitable for the child, or detrimental to the child’s best interests, you may argue this in court.
- If your former spouse has sole custody and you only have visitation rights, they will still need to consider those rights if they relocate. Generally, they may be able to move within the same town or even the same state, but if they’re moving so far away that it makes visiting difficult, they may need court approval. Contact an attorney to see how you can assert your rights in this situation.
When A Parent Takes The Child Out Of State – Federal Laws
Is it illegal for a parent to take their child out of state? Again, this depends on whether or not the child custody agreement allows it. If a parent moves the child across state lines without authorization, it may be seen as parental kidnapping. Federal laws will then apply.
The Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) are two key laws on this matter. Under these laws, if a child is unlawfully taken to another state, the case will be under the jurisdiction of the “home state.” For instance, if your child’s home state is Arizona but your ex-partner secretly took them to Colorado, the Arizona custody order and laws will apply to the case.
There are other federal provisions that could affect a child abduction case. For example, there is an “emergency jurisdiction” rule that may apply if your child’s safety is at risk. With this rule, the other state’s laws may step in to protect your child, instead of waiting for Arizona law enforcement to come in.
The Need For A Lawyer In A Parental Kidnapping Case
To avoid a parental kidnapping accusation, a parent must thoroughly review their child custody order’s relocation terms. If there is none, it is always best to get the explicit agreement of the child’s other custodian regarding the move.
These are basic precautions, though real-life situations are not always simple. Travel plans with the child can get problematic if, for instance:
- Parents are antagonistic towards each other
- Traveling would make communication difficult
- Traveling interferes with the child’s daily routine
- The child has been influenced to stay with or avoid one parent
- Either parent hopes to start a new family that includes the child.
Because of such issues, separated parents are particularly sensitive about each other’s plans to move. In addition, they commonly confuse what’s legal and what’s not. This is why parental kidnapping and custodial interference cases are often complicated, even when a clear custody order is in place. The penalties for violating these different laws are severe. It takes an experienced family law attorney to help you navigate the laws as they apply particularly to your case.
Don’t hesitate to approach our considerate attorneys at Goldman Law. We can provide you with case-specific guidance on your parental rights and responsibilities in Arizona.