This section contains the nature of the case and procedural background.

D was charged with one count of custodial interference and one count of conspiracy to commit custodial interference. The charges arose from a criminal complaint that D aided and abetted his nephew, H, in interfering with the custodial rights of the nephew's wife, W, with respect to H's child, Saba. D moved to dismiss the charges based on the fact that H, as the child's father, was a joint custodian. The trial court granted the motion to dismiss based on the Marshak precedent. The trial court concluded that the state had not demonstrated that W was the sole custodian of the child at the time of the alleged interference. Under a prior court order, H had only limited supervised visitation based on his risk of flight and his past abusive behavior. Eventually, H used the aid of D to distract H's wife, and H took the child from a store in a mall while D was talking to W. D was charged, and those charges were dismissed. This appeal resulted.

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