Can I keep my children from their Dad who has equal custody if he isn’t social distancing during this time?
Although COVID-19 has placed us all in a new reality, children’s safety issues have been addressed by our legislature and our Family Court long before I started practicing family law 27 years ago.
If you believe your child may be harmed while in Father’s care, then it is my advice that you need to seek emergency orders. If you do not, and instead simply keep the child in violation of existing Court orders, there can be significant repercussions.
Pursuant to Arizona criminal law, a person commits “custodial interference” if, knowing or having reason to know that the person has no legal right to do so, the person withholds the child from the other parent or intentionally fails to the child to the other parent. Custodial interference can result in felony or misdemeanor charges.
Pursuant to one of our Family law statutes, if our Court finds that a parent has refused without good cause to comply with a parenting time order, the court MUST do at least one of the following:
- Find the violating parent in contempt of court.
- Order visitation or parenting time to make up for the missed sessions.
- Order parent education at the violating parent’s expense.
- Order family counseling at the violating parent’s expense.
- Order civil penalties of not to exceed one hundred dollars for each
- Order both parents to participate in mediation or some other appropriate
form of alternative dispute resolution at the violating parent’s expense.
- Make any other order that may promote the best interests of the child or
I have seen my Judges remove a child from one parent’s primary care and place the child in the other parent’s primary care after a period of time when one parent simply kept the child rather then filing an appropriate petition.
One defense to prosecution for custodial interference is to file an emergency petition regarding custodial rights with the superior court and obtain a hearing date under the “good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent”.
Please know that I am not trying to convince you to not keep your child from what I agree is extremely dangerous conduct. Instead, I am encouraging you, if you believe your child is in danger due to Father’s lack of adherence to the social distancing mandate which the majority of us are adhering to, to file for emergency orders right away. Until we learn more from our Family Court on this issue, it is risky to just keep the child.