The Crime of Custodial Interference in Utah @ Salt Lake Free Press
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The Crime of Custodial Interference in Utah
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Or at least that is my experience, as a divorce and family lawyer in Utah.

In a 2013 KSL News investigative report, Mike Headrick reported that from filing to judgment on custodial interference charges took an average of 232 days. Of the custodial interference cases that are started the courts dismiss a majority of them. Those that survive consist of 63% against mothers, 37% against fathers. And custodial interference cases have tripled over the last 10 years. My experience squares with the news report.

I'm not going to tell you where I practice or what my firm's name is because that is not what this article is about. Go ahead and Google "custodial interference in Utah" or a similar search term. Aside from Mike Headrick’s excellent, though brief, report, you won't find anything of real substance.

(And folks, while I never spoke to Mike Headrick about the extent of the research he conducted in preparing his report, I would bet that he didn't report even half of what he learned and what he really knew or thought. This is not a knock on Mike Headrick, but on the system; one of those situations where reporting all the truth would have been unbelievable).

Regardless of how the truth reflects on Utah, the police, parents, and lawyers, I'm going to give you my unvarnished opinion on the subject.

First, you need to know what custodial interference is, and Utah's law dealing with custodial interference.

Utah’s custodial interference law is found in Title 76, Chapter 5, Section 303 of the Utah Code.

What happens to someone to custodial interference?

Custodial interference is a class B misdemeanor (punishable by up to six months imprisonment), unless, in committing custodial interference the perpetrator has been convicted of custodial interference at least twice in the two-year period immediately preceding the day on which the latest act of custodial interference is committed, in which case it’s a class A misdemeanor (punishable by up to six months imprisonment).

Custodial interference is a third degree felony (punishable by imprisonment of up to five years) if, in committing custodial interference, the perpetrator removes, causes the removal, or directs the removal of the child from the state.

Finally, a person convicted of custodial interference is subject to the driver license suspension as follows: class B misdemeanor conviction: suspension for a period of 30 days, unless the court orders a shorter period; class A misdemeanor: 90 days, unless the court orders shorter period; and third degree felony: 180 days, unless the court orders a shorter period.

What is custodial interference?

If you are entitled to visitation with a child, but “with the intent to interfere with the custody of the child” then “take, entice, conceal, detain, or withhold the child from a person who is entitled to custody” of that child when visitation ends, you are guilty of custodial interference.

You can also be guilty of custodial interference if you are the child’s custodial parent, but if, during a period of time when another person is entitled to visitation of the child, you, with the intent to interfere with the visitation of the child, then take, entice, conceal, detain, or withhold the child from the person entitled to visitation.

In case you needed further definitions, “child” means a person under the age of 18. “Custody” means court-ordered physical custody entered by a court of competent jurisdiction. “Visitation” means court-ordered parent-time or visitation entered by a court of competent jurisdiction. This means that if you do not have a court order of child custody and visitation—say you’re a married couple with a child or an unwed couple with a child, but no court orders—neither you nor the other parent can commit custodial interference.

Are there any defenses to custodial interference?

There certainly are.

It is an affirmative defense to the crime of custodial interference that:

(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or

(b) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and before engaging in the action, the person reports to the Division of Child and Family Services or law enforcement his/her intention to engage in the action, and provides the basis for the belief that the action is necessary to protect a child from abuse, including sexual abuse.

It is also a defense if you were acting under a reasonable belief that the conduct was necessary to protect any person from imminent bodily injury or death; or the detention or restraint was authorized by law; or the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor's conduct.

Will law enforcement officers arrest or cite people for custodial interference?

Rarely. It doesn't matter how good a case you may have, how much evidence you can furnish, how unrepentantly person committing the custodial interference is behaving. Most law enforcement agencies in Utah that are charged with enforcing the custodial interference laws are not shy or embarrassed about frankly declaring that they don't like the custodial interference law and either will not enforce it or feel they don't have the manpower to enforce it. Ask any parent who is the victim of custodial interference and you will confirm this for yourself.

So should I just forget about reporting custodial interference?

Not necessarily. Just be aware that if you are the victim of a first act of custodial interference and you duly reported to the police or the sheriff's office in your area, you should not expect the police to make any arrests or issue any citations. But this does not mean you should not make the report.

Even if the police will not make an arrest or issue a citation for custodial interference when he reported, they do have to make a record of your report. This record is helpful if and when you make future reports of custodial interference. For each time custodial interference is committed and you report it, you make it harder for the police to ignore the situation. I personally know parents who had to report custodial interference more than six times before the police finally made an arrest or issued a citation. Amass enough evidence and eventually it becomes virtually impossible for law enforcement to ignore your victimization without seriously embarrassing themselves or exposing themselves to a lawsuit.

Unfortunately, even if the police do make an arrest or issue a citation that does not necessarily mean that the offender will be prosecuted for the crime. Once you get the police to make an arrest or issue a citation, it is then left to the prosecuting attorney in the city or county where you live to decide whether to file criminal charges in court. I have yet to find anyone in law enforcement, either at the police’s end or the prosecuting attorneys end, who will prosecute custodial interference with any degree of regularity or consistency. Why?

They just don't like doing it. They just don't like doing it. It gets reported a lot, and they feel overwhelmed. Some feel that it's kind of a "silly" crime. They are afraid that if they start making arrests and pursuing criminal actions that parents will flood the police and prosecuting attorneys’ offices with custodial interference claims. You know, they may be right, but what they lose sight of is that maybe, just maybe once they start prosecuting perpetrators of custodial interference, finding them, suspending their drivers licenses, and/or putting them in jail, maybe those custodial interference perpetrators will get the message and stop perpetrating.

Are there any alternatives to pursuing custodial interference?

Yes, although you must not confuse “alternative” with “equivalent.” Where there is a court order of child custody and visitation (now also known in Utah as “parent-time”) and the other parent interferes with your parent time or does not return the children to you after parent time, in violation of the courts orders, that constitutes what's known as “contempt of court.” This is not a crime, but a civil law violation. Rather than reported to the police, you pursue sanctions for contempt of court by filing a motion with the court. The hearing is then held before the judge or the domestic relations commissioner. If the court finds that the other parent did violate court orders and is in contempt of court, the court can impose penalties that are similar, and in some cases identical to, the penalties that can be imposed for a conviction for custodial interference, i.e., jail time, fines, and drive license suspension. Contempt of court penalties can also include orders to attend parenting classes and perform community service. Contempt of court and criminal custodial interference prosecution are similar, however, in that courts are very reluctant to punish custodial interference. So don't be surprised if you do not succeed on your first motion to seek contempt sanctions, your second, third, or more.

If you find yourself not merely a victim of custodial interference, the repeated victim of custodial interference in a city or town where law enforcement prosecuting attorney ignore your reports and request for help, another avenue of assistance also exists through your divorce court: a petition to modify child custody. Interference with child custody and/or parent time rights can constitute several bases for a court to find that the child custody order should be modified, not the least of which is the harm custodial interference causes children and the damage it causes the parent-child relationships. When petition, the court can respond to custodial interference by modifying the child custody and parent time award in a way or ways that will make custodial interference difficult to impossible, or provide such stringent penalties for noncompliance that the noncompliant parent is either totally discouraged committing further custodial interference or jailed.

Sources

Eric K. Johnson is a Salt Lake City Divorce Attorney with Utah Family Law LC

Tel. No.: (801) 466-9277 x 302
Cell No.: (801) 466-9277 x 404

by Contributing Writer / Eric Johnson (May 15th, 2014)
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