Custodial Interference In Arizona
Under A.R.S. section 13-1302(A)(2), a person commits custodial interference if, "knowing or having reason to know that the person has no legal right to do so, . . . before the entry of a court order determining custodial rights, [he] takes, entices or withholds any child from the other parent denying that parent access to any child."
Thomas argues that section 13-1302(A)(2) requires that there be ongoing court proceedings concerning custody before a person can be charged with custodial interference.
The State contends that section 13-1302(A)(2) does not require the pendency of a custody proceeding before a person can be guilty of custodial inference.
Instead, the State argues that section 13-1302(A)(2) applies to any parent who interferes with the other parent's right of access to and custody of a child by taking or withholding that child from the other parent.
A trial court should dismiss a criminal case upon the defendant's motion only if "the indictment, information, or complaint is insufficient as a matter of law." Ariz. R. Crim. P. 16.6(b).
Although we generally review the trial court's granting of a motion to dismiss for an abuse of discretion, this is entirely a matter of statutory interpretation that we review de novo. See State v. Melvern, 192 Ariz. 154, 155, P2, 962 P.2d 228, 229 (App. 1998).
Our goal in interpreting a statute is to effectuate the intent of the legislature. See State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).
In construing criminal statutes we apply practical, common sense constructions, not hyper-technical ones that would tend to frustrate legislative intent. See State v. Cornish, 192 Ariz. 533, 537, P16, 968 P.2d 606, 610 (App. 1998).
When "a statute's language is clear and unambiguous, we must give effect to that language and need not employ other rules of statutory construction." State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997).
When a statute is not clear, we determine the legislature's intent by reading the statute as a whole, and by considering its context, subject matter, historical background, consequences, and effects. See State v. Garcia, 189 Ariz. 510, 513, 943 P.2d 870, 873 (App. 1997). Statutory provisions are to be "construed in context with related provisions and in light of their place in the statutory scheme." State v. Wilhite, 160 Ariz. 228, 230, 772 P.2d 582, 584 (App. 1989).
A practical and common-sense reading of the language of section 13-1302(A)(2) compels us to hold that pending custody proceedings are not a prerequisite to a prosecution for custodial interference under this section.
The legislative history of the present version of the custodial interference statute supports our interpretation of section 13-1302(A)(2).
The staff of the Arizona Senate explained that the purpose of the bill amending the former version of A.R.S. section 13-1302 was to increase "the scope of actions which come under custodial interference and the penalties which result from such offenses." Arizona State Senate, Final Revised Fact Sheet for H.B. 2248, 43rd Legislature-First Regular Session (1997).
Additionally, the relevant minutes from the committees that reviewed the bill suggest that the purpose of the provision was to codify existing case law giving both parents equal access to their child and forbidding either parent from hiding a child from the other.
See Minutes of Senate Committee on Family Services, 43rd Legislature-First Regular Session (Ariz. Mar. 19, 1997); Minutes of House Committee on Family Services, 43rd Legislature-First Regular Session (Ariz. Jan. 30, 1997); Minutes of House Committee on Judiciary, 43rd Legislature-First Regular Session (Ariz. Feb. 12, 1997).
If the legislature's purpose was to increase the scope of Arizona's custodial interference statute, it is unlikely that it would have criminalized only conduct that occurs after court proceedings have begun but ignored conduct that occurs before such proceedings.