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Posted by ekjadmin on September 22, 2010
Among the bills proposed during the Utah State Legislature’s 2010 session is H.B. 197, which proposed to repeal and replace the current criminal code section dealing with custodial interference. The link to the bill is http://le.utah.gov/~2010/bills/hbillint/hb0197.htm.
I have prepared this side-by-side comparison of the current version § 76-5-303 and of the proposed the revisions of H.B. 197, with my comments.
| § 76-5-303 as currently promulgated | H.B. 197’s proposed revisions | My comments |
| 76-5-303. Custodial interference. (1) A person, whether a parent or other, is guilty of custodial interference if, without good cause, the actor takes, entices, conceals, or detains a child under the age of 16 from its parent, guardian, or other lawful custodian: (a) knowing the actor has no legal right to do so; and(b) with intent to hold the child for a period substantially longer than the parent-time or custody period previously awarded by a court of competent jurisdiction. (2) A person, whether a parent or other, is guilty of custodial interference if, having actual physical custody of a child under the age of 16 pursuant to a judicial award of any court of competent jurisdiction which grants to another person parent-time, visitation, or custody rights, and without good cause the actor conceals or detains the child with intent to deprive the other person of lawful parent-time, visitation, or custody rights. (3) Custodial interference is a class A misdemeanor unless the child is removed and taken from one state to another, in which case it is a felony of the third degree. |
REPEALS AND REENACTS: 76-5-303, as last amended by Laws of Utah 2001, Chapter 255Be it enacted by the Legislature of the state of Utah: Section 1. Section 76-5-303 is repealed and reenacted to read: 76-5-303. Custodial interference. (1) As used in this section: (a) “Child” means a person under the age of 18. (b) “Custody” means court-ordered physical custody, entered by a court of competentjurisdiction. (c) “Visitation” means court-ordered parent-time or visitation, entered by a court ofcompetent jurisdiction. (2) (a) A person who is entitled to custody of a child is guilty of custodial interferenceif, during a period of time when another person is entitled to visitation of the child, the person takes, entices, conceals, detains, or withholds the child from the person entitled to visitation of the child, with the intent to interfere with the visitation of the child. (3) (a) Except as provided in Subsection (3)(b) or (c), custodial interference is a class B misdemeanor. (4) In addition to the affirmative defenses described in Section 76-5-305 , it is anaffirmative defense to the crime of custodial interference that the action was consented to by the person whose custody or visitation of the child was interfered with. |
BAD IDEA. Subsection (1)(b) now creates yet another reason to resist an award of joint custody because under the proposed revised § 76-5-303, now a joint custodian would have rights that he/she would not have if sole custody were awarded.And joint custody should be encouraged, not discouraged as a matter of public policy.
ABHORRENT IDEA re: subsections (2)(a) and (b). Is refusing to allow parent-time/visitation a crime if the parent who so refuses is doing so in the good-faith belief/attempt to protect the child? I have a client right now whose ex-spouse tested positive for marijuana and crystal methamphetamine use over the weekend, and there is not yet an order that restrains the drug-using parent. Correct me if I am mistaken, but the revised § 76-5-303, as currently drafted, eliminates the “good cause” defense. Under the revised § 76-5-303, my client would be committing a crime unless the client sends the child away for parent-time with the drug-using parent. Good cause needs to be retained as a defense. The reasons why should be obvious. |
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