if the acts were performed to protect, safeguard, or discipline a child. Those who can
claim these justifications and defenses
depend on the specific language in the
statutes providing for them and the persons’
relationship with the subject child.
“A parent, guardian, or other person
entrusted with the care and supervision of
a minor” can use reasonable force upon a
minor that would otherwise constitute a
crime if the force is “to the extent necessary
and appropriate to maintain discipline.” 5
Likewise, a “parent, guardian, or other
responsible person” can install a monitoring
or recording device in their own home for
child supervision or safety despite prohibitions on recording others without their
knowledge, even in areas where a person
may not expect it. 6
While Obergefell legalizes the relationship
of the parents in the residence, which assists
in rendering the above defenses available to
the members of a same-sex marriage in child
rearing, the same defenses might otherwise
have been available prior to Obergefell never-
theless, dependent on the particular circum-
stances and arrangements in that family.
The application of custodial interference
defenses7 to parents in same-sex marriages
who withhold or interfere with the other
parent’s access or custody of a child when
the child is in “immediate danger” or risk
of harm may not be as straightforward. The
specific statutory defenses available depend
in part on the defendant’s legal and biologi-
cal relationship to the child. While Obergefell
legitimized the marriage of the parents, it
may not in all circumstances legitimize the
legal relationship to the child.
In time, the language in the applicable
portions of the criminal code should either
be modified or interpreted to apply equally
to same-sex and opposite-sex marriages. In
the interim, however, it may be wise for the
non-biological or non-adoptive parent in
some same-sex marriages to legally adopt the
child in order to be assured a party can take
full advantage of legal defenses and Victim
Bill of Rights protections.
1. Adultery in A.R.S. § 13-1408;
Abandonment and Leaving Spouse
Destitute in A.R.S. § 13-3610; Neglect to
Provide for Spouse in A.R.S. § 13-3611;
Bigamy in § 13-3606; Marrying the Spouse
of Another in § 13-3607.
2. Pursuant to A.R.S. §13-3601, certain
enumerated offenses can be alleged to be
crimes of “domestic violence” if they were
committed between people who have had
an intimate relationship, a familial or marital
relationship or have resided together.
3. See exceptions in A.R.S. § 13-4062(A)( 1)(a)
and (b) and § 13-4063.
4. A.R.S. § 13-4401 ( 19).
5. See id. § 13-403.
6. See id. §§ 13-3001( 2), 13-1424, and
7. See id. § 13-1302