Parental Rights & Obligations

questions & answers

Question: Can a Father (who is currently married) take the child (of the marriage) and leave to another state without a court decision on custody or any other legal filing.

Answer: There are at least two considerations here. First, Father needs to consider the criminal custodial interference statute at A.R.S. § 13-1302(A)(2). The fact that no court has issued a custody or parenting time order does not give Father the freedom to abduct the children and disappear, and he could face felony indictment for doing so.
Second, Father must potentially respect the family law relocation statute. The notice requirement in that statute does not apply unless both parents are entitled to custody or parenting time due to a court order or by written agreement. (A.R.S. § 25-408(B)): I have not previously encountered the question of whether the fact of marriage alone constitutes a written "agreement" that each parent enjoys a right to custody (some might argue that a marriage contract is exactly that), but Father runs a real risk by rolling the dice on this issue. In any event, even if the idea were technically acceptable, there is a difference between what Father *can* do, and what he *should* do. Suffice it to say that by taking off with his children against Mother's wishes (or worse yet, without her knowledge), Father runs the risk that Mother will file an Arizona custody petition within six months of his departure. If that happens, Arizona will almost certainly retain child custody jurisdiction over the case, which means that an Arizona court will decide custody - even if the children have lived with Father in a different state for several months. Also, if Father withholds the children from their mother, this could be used as evidence against him during the final custody determination. (See A.R.S. § 25-403(A)(6)) 
Among many, many other statutory factors, I am sure that the court will also consider:
(a) why Father felt he needed to leave AZ;
(b) whether a less drastic measure would have resolved his problem;
(c) the degree to which Father consulted with Mother about relocation;
(d) the degree to which Mother objected to relocation; and
(e) whether Father used the threat of taking the children to another state as a tool to get something else he wanted from Mother (that Mother refused to concede).
So Father needs to weigh: (1) the risk of appearing to the judge as a loose cannon (or felon) who is insensitive to the relationship between his children and their mother; against (2) the temporary thrill of having his way as he pulls out of town. Father should also remember that, in either event, if Mother cares enough about the child, she *will* apply for custody and - unless she has behaved horrifically during the marriage (e.g. drug addiction, interspousal violence, child abuse or other criminal behavior) - just about any court (in any state) will allow her at least some degree of visitation. At minimum, Father should consult with a criminal defense attorney to ensure that whatever course of action he selects does not amount to a crime under Arizona law. He won't do his children any favors by sitting in jail.