There IS more to this Criminal Custodial Interference-thing
This seems to be the week for me to bite off my tongue in passing along information. As you may recall from a previous post regarding the use of police to enforce a visitation order, I stated that you cannot have law enforcement enforce your civil order, unless the Order specifically said so.
Well.
That IS true. But there’s more to this story than that. There is such a thing as criminal custodial interference. In Utah, statute that describes this and states what the class of crime it is is found at U.C.A. § 76-5-303. It is a CRIME in Utah to intentionally interfere with the custodial rights of another parent who has been awarded parent-time under a civil court order. This means that if you’re a jerk and keep your ex (spouse, boyfriend, girlfriend) from seeing your kid(s) when it’s his or her turn under the Order, you can be charged with a crime. The statute is located here.
The purpose of this statute is to act as a sufficient deterrent, as well as a club, to prevent one parent from essentially eliminating the other from the child’s life. You’ll note that it’s actually a 3rd degree felony to remove the child from the state while doing this rotten thing to your ex. It’s a big deal. BUT. . .
And this is a big BUT, in all-caps: there is an intent element to this statute. That means that just because the kid doesn’t want to go with the other parent, and refuses to do so, you are not going to be convicted of custodial interference.
Okay, so you can’t MAKE her go, but you’ve got to give it your best effort.
The statute specifically states, “with the intent to interfere with the custody of the child…”. You have to INTEND
to keep the kid from the other parent. Meaning, “I don’t want you to have the kids, so I’m taking him away, and not giving him to you.” NOT, “My 16-year-old daughter really doesn’t like you, and the only way to get her to go with you is to bodily put her in your car.” Not the same things. And the second one is not something that can get you charged with criminal custodial interference.
All that said, it is your JOB as a parent of your child to encourage a positive relationship with the other parent, even if you don’t like him/her, even if you think he/she is a total jackass, even if you hate his/her new spouse. It is not your job to make your kid’s life harder by undermining the other parent. So be proactive in encouraging that 16-year old to go with that parent she doesn’t particularly like. You do your best. Sincerely. Even when it’s hard (and believe me, it can be HARD sometimes.) That’s all that can be expected.
Just don’t be a jerk.
PTA Mom to Lady Lawyer 
I stumbled upon this blog while researching utah law on older children having to choose which parent to live with in a divorce.
Thank you so much for sharing your wisdom. It’s an amazing gift at a crucial time in my life.
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My jerk, told me “You’re a dead woman, You’re dead!” when trying to beg for Christmas visitation and I took a friend with me to the pick up spot to ensure I wasn’t shot dead. When I got home I called police and told them what he said and asked for a protective order, and they didn’t budge. He’s already got a child abuse charge from before, now he’s threatening my life…..and you want me to “answer the door?” I told them not as long as he’s in sight…he’s the one I asked for a restraining order for….so they left and came back later with a writ of assistance, (mind you he kidnapped the child in 2006—interstate), so we’ll see, now I just fear for my son.
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PLEASE REMEMBER–the information contained in the blog posts addresses the NORMAL situations. If you have a dangerous situation with your kids, if you fear for your life, obviously you would be justified in acting accordingly. I don’t want ANYONE to answer the door to someone who has threatened to kill them!
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While technically your comments are correct however your comments are uninformed. Local law enforcement rarely charges anybody with “Custodial Interference” and police departments never make an arrest and some departments don’t even document the situation when you do call the police (Bountiful & West Valley are examples.) An ex-spouses have no fear of “Custodial Interference” and their attorneys often are equally in violation of the law when they tell their clients not to follow the court order.
TO BE HONEST… Most cops don’t have the intelligence to understand a simply court order or the law so they do not make recommendations for “Custodial Interference” and most prosecutors want repeated and numerous violations in order to make a charge. While there is case law that permits a judge to change custody when one parent repeatedly denies parent time this rarely happens as Utah doesn’t make “Custodial Interference” a “Prima Fica” styled case unless you take it back to the Family Court with an “Order to Show Cause.”
The Courts have also told police chiefs (Chief Russo West Valley Police Chief personally told me) that they do not want officers and prosecutors enforcing “Custodial Interference” as they want this in Family Court. Dozens of “Custodial Interference” complaints are made in Utah every week but if you check the court calendars only a fraction of those cases are charged.
FACT CUSTODIAL INTERFERENCE doesn’t exist in Utah.
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At the time I wrote the blog article, I was working off of what the law actually says. Having seen how it is NOT enforced in action, however, I have to mostly agree with you. Which is sad and depressing, honestly.
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My relative has her two kids 50/50 with estranged husband. There was suspected abuse reported on him and DCFS had opened up an investigation. The kids guardian ad liem told her to not give them back when he came to get them. The police filled a report and now she has been charged with custodial interference. Isn’t there an exception in the Utah code that states that if you fear for the children’s safety, you are justified in custodial interference?
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Yes. Enforcement of custodial interference is entirely up to the discretion of the prosecutor. If she were to submit to the prosecutor an affidavit from the guardian ad litem, or from DCFS, more than likely the criminal custodial interference charge would be dropped. No guarantees. Not all prosecutors are good people. And she still has to go through the emotional energy of the defense of the charge.
I’m sorry.
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My ex has kept me from seeing or speaking to my kids for going on 7 yrs, I was finally able to afford to retain a lawyer and initially we were going for full custody due to interference and talking badly of me to and in front of the children. The judge said we needed to file for contempt and now my ex is attempting to purge contempt by letting me see the kids, which I am so happy I get to see them. Now it seems as though my lawyer is giving up, telling me that I should take the only option my ex is giving me which is to see my kids once a month for 4 hours. BTW I live 11 hours away from the kids. I am the one who moved because I was not seeing the kids and there was opportunity for me for a stable life in my current state. Should I agree to his terms, and what are the chances the judge will change custody, soley because of his interference?
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Statutory minimums for relocation are located at U.C.A 30-3-37—and the amount of time allowed for under statute is a LOT more than what the ex is offering. Without knowing anything else about your case, and solely based on what you’re telling me, DO NOT agree to 4 hours a month. Again–that’s not even the minimum.
Relocation statute spells out holidays, a monthly visit, summers, and who pays for travel. I suggest you look into that before rolling over. A link to the statute is on the blog on the right side in the Utah Law links section.
As far as changing custody….That’s a different matter. I don’t think the court would change *solely* on the interference with parent time issue. That will depend on other factors, as well as what jurisdiction you’re in–every judge does things a little bit different. I couldn’t say one way or the other regarding a change in custody, but I doubt it would happen.
Good luck!!!
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