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Battling Custodial Interference – Criminal Prosecution

So what can you do the battle custodial interference if local law enforcement and the city and county attorneys won’t?  Check out our blog posting on motions for order to show cause to sanction your ex for contempt of court and our blog posting on writs of assistance.

This posting discusses how and under what circumstances the crime of custodial interference is prosecuted.

Which is why this posting is going to be so short.

Because by and large, no matter where you are in Utah, the crime of custodial interference is not enforced consistently, so it is effectively not enforced at all.

There are literally county sheriffs, county attorneys, local police and other prosecutors throughout the State of Utah who outright refuse to: issue citations, make arrests, and prosecute Utah’s custodial interference statute.  If you would like to know what the crime of custodial parents is in Utah (not that it matters much), here is a link to that statute, which is found at Utah Code § 76-5-303.

Ah, but you still don’t really believe me. You think that this is a blog posting by some crank who got burned by the custodial interference laws or some sore loser who wanted custodial interference to be prosecuted, but there was an honest difference of opinion between me and the prosecutor.  No.  But I don’t expect you to take my word for it.

Go ahead and pick up the phone and dial any county or city attorney’s office, and ask to be connected to the actual county or city attorney (not just any attorney who happens to work in the office, the actual head guy/gal, the County Attorney or the City Attorney, although if the City/County attorney won’t take your call, asking to speak with any attorney who will take your call is better than nothing, and the results will be the same).

Once you are connected with the attorney, ask this simple question: “Is it your office’s policy to prosecute those who violate the custodial interference statute, Utah Code § 76-5-303?”

If some sly elf at the county attorney’s or city attorney’s office is quick witted enough to respond with:

“We decide what to prosecute on a case-by-case basis,”

or something like:

“We aggressively pursue crime [sic] in our community, and are swift and sure in holding offenders accountable for their criminal conduct”1; or

“We vigorously prosecute and investigating crime, compassionately assisting crime victims”2; or

“Prosecuting appropriate cases and declining those that are not,”3

Then follow up by asking simply, “When was the last time your office prosecuted anyone for custodial interference?”  If you believe what I tell you in this blog posting, the answer you get to your question will not surprise you.

And don’t let the county or city attorney’s office try to wriggle free by telling you that the information you request is “confidential” or “private” or “part of any ongoing investigation,” etc.—it’s not.  It’s as public as public information gets, and you, as a member of the public are entitled to know about it when you inquire.  You are entitled to know, if you ask, the name of the defendant(s), the court case number, the city where the case was filed, the judge assigned to the case, and the attorney prosecuting it.

To make your quest easier, I have taken the trouble of listing the names and phone numbers of the City Attorneys for several major cities in Utah and the names and phone numbers of every county attorney in the state below.  Please share your experiences with me.  I would like nothing better than to discover that I was wrong, and that somewhere in Utah the crime of custodial interference is taken seriously.  But even if your story only corroborates mine, I’d still be interested to hear about your experience.

So what can you do the battle custodial interference if local law enforcement and the city and county attorneys won’t?  Check out our blog posting on motions for order to show cause to sanction your ex for contempt of court and our blog posting on writs of assistance.

Utah Attorney General’s Office:  (801) 366-0260, (801) 538-9600, (801) 366-0300

Salt Lake District Attorney: (385) 468-7600

Sandy City District Attorney:  (801) 568-7100

Provo City Attorney: (801) 852-6140

County Attorney List:

Beaver                      Von Chistiansen                                 435-438-6434

Box Elder                 Stephen Hadfield                               435-734-3300

Cache                        James Swink                                      435-755-1860

Carbon                      Gene Strate                                        435-636-3240

Daggett                     Stephen Foote                                    435-738-0184

Davis                        Troy Rawlings                                    801-451-4300

Duchesne                  Stephen Foote                                    435-738-0184

Emery                       David Blackwwell                             435-381-2543

Garfield                    Barry Huntington                               435-676-1103

Grand                       Andrew Fitzgerald                             435-259-1324

Iron                           Scott Garrett                                      435-865-5310

Juab                          Jared Eldridge                                    435-623-3460

Kane                         Jim Scarth                                          435-644-5278

Millard                      Richard Waddingham                        435-864-2748

Morgan                     Jann Farris                                          801-845-4006

Piute                         Mark McIff                                        435-896-4461

Rich                          George Preston                                  435-752-9644

Salt Lake                  Sim Gill                                              385-468-7700

San Juan                   Craig Halls                                         435-587-2128

Sanpete                     Brody Kiesel                                      435-835-6381

Sevier                        Dale Eyre                                           435-896-2675

Summit                     David Brickey                                    435-336-4468

Tooele                       Douglas Hogan                                  435-843-3124

Uintah                       Mark Thomas                                     435-781-5436

Utah                          Jeffrey Buhman                                 801-851-8026

Wasatch                    Scott Sweat                                        435-654-2909

Washington              Brock Belnap                                     435-634-5723

Wayne                      Mark McIff                                        435-896-4461

Weber                       Dee Smith                                          801-399-8377

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1 See Salt Late County District Attorney’s Office Mission Statement

2 See Utah County Attorney’s Office “What We Do” page

3 See Davis County Attorney’s Office webpage

If you are in need of assistance with a Custodial Interference matter, please click the link below to schedule an appointment with one of our attorneys.

 

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12 Comments

  • Question. My 6 month old daughters mother was sent back to prison on parole violation for using drugs June.1,2017. My daughters since been living with jer great grandmother whom will not let me see my daughter. Is there anything i can do to exercise my parental rights. Without having to hire a lawyer please let me know as soon as possible thank you very much for your time

    Reply
    • DivorceUtah
      July 31, 2017 1:04 pm

      The answer to your questions depends upon whether you are divorced or whether there is some other kind of court order in place governing child custody. If you are still married and/or if there is no court order governing child custody, then with the mother in prison your child custody rights are superior to the great grandmother’s, but the police will almost surely do nothing to help you. You can either go get the child, so long as you don’t commit any crimes in the process of doing so, or you can file for a writ of assistance in the courts to get the police to help you get the child into your custody.

      Reply
  • Very interesting article. We live in Layton. Custodial interferences in our case happens on almost a daily basis for my wife. She calls PD and files a report like she has been instructed to do.
    Yet nothing happens….ever. The PD is bothered
    And my wife is exasperated!
    What can we do???

    Reply
    • Divorce Utah
      June 20, 2018 8:48 am

      Has your wife tried to hold her ex-husband accountable and see him sanctioned for contempt of court? If the ex-husband is disobeying child custody and parent-time orders, your wife can move to have her ex-husband held in contempt of court and sanctioned accordingly.

      This is something that your wife can do without needing the assistance or support of the police. She can file what is known as a “motion for order to show cause” against her ex-husband and then require him to appear in court to explain to the court (if he can) why he should not be sanctioned for contempt of court for failing to comply with child custody and parent-time orders.

      Here is what a court can do to sanction a parent who violates child custody and parent-time orders in Utah:

      Utah Code § 78B-6-310. Contempt — Action by court.
      (1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.
      (2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

      Utah Code § 78B-6-316. Compensatory service for violation of parent-time order or failure to pay child support.
      (1) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:
      (a) perform a minimum of 10 hours of compensatory service; and
      (b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.
      (2) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.
      (3) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.
      (4) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.
      (5) If a court finds by a preponderance of the evidence that an obligor, as defined in Section 78B-12-102, has refused to pay child support as ordered by a court in accordance with Title 78B, Chapter 12, Utah Child Support Act, the court shall order the obligor to:
      (a) perform a minimum of 10 hours of compensatory service; and
      (b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.
      (6) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.
      (7) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.
      (8) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.
      (9) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

      Reply
  • Autumn White
    June 24, 2018 1:48 am

    What do I need to file for custodial interference I know I need to do an order to show cause but is that all?

    Reply
    • Custodial interference is a crime, so all you can do with regard to custodial interference his report that the police and see if the police will make any arrest or issue any citations. Then it becomes a question of whether your city or county attorney will prosecute your exit for custodial interference. In Utah generally, the police rarely site or arrest for custodial interference. And the city and county attorneys rarely ever prosecute it. So is it worth reporting? Yes, if for no other reason than to create a record of the fact that custodial interference is being reported by you. This helps to show that you are not sitting on your rights and trying to exercise and enforce them. It also ensures that you have other witnesses to your efforts, even if those witnesses are police officers who are doing their jobs by arresting or citing anybody, they can still help you by writing up a report.

      So then you asked if you can “file for custodial interference”. Because custodial interference is a crime, finally in order to show cause with the divorce court is a matter of contempt of court. Contempt of court arises when your ex refuses to obey the divorce court’s child custody and parent time orders. Unlike custodial interference, contempt of court is something you have much greater control over prosecuting. You can prepare the motion, you can file it with the court, you can get a hearing, and you will get a chance to show your divorce court judge your ex’s noncompliance and ask for enforcement and for sanctions for noncompliance.

      I hope this is clarified the matter for you. If all of the above seems like a lot to take in and too difficult to handle on your own, I would be happy to discuss it with you further if you’d like to make an appointment.

      Reply
  • Chris McCarty
    August 29, 2018 10:52 am

    This is realy sad because Utah has ni problem what so ever slapping a protective order on the father who chose the cival road with no police and mess. Then 8 court dates later still not even getting a chance to speak in court I now face violations of this order. My attorny said it doesnt matter that she is tricking you, baiting you and being uncooperative she got to it first! IT, he said..I assume he means she called the cops first and fed them the lies that will now not even be heard in court and i will do Jail time all for being a loving father whos child is #1 priority… 🙁 Did i mention the protective order was issued in court after the prosecutor decided to add a stalking charge in court. Yeah so the humin punching bag keeps getting punched… Any suggestions?

    Reply
  • I am very surprised that Custodial Interference is even prosecuted. In US v Armstrong the court was very specific in what is required to prove “Selective Prosecution.” Prosecution is arbitrary. Many divorce decrees are too broadly and poorly written to be able to make prosecution logical. Also “Custodial Interference” has a couple of affirmative defenses and if no complaint is made against the offending parent then the legal definition is that you are in agreement. The 3rd District mediation is complete BS so women know what they can get away with and they frequently do. The law needs to be fixed.

    Reply
  • im dealing with Layton police a well I haven’t seen my 14 yr old son in 3 months we have 50/50 custody cops told my son he don’t have to come since he turned 14 they both have my number blocked what do I need to do ??

    Reply
    • If the police tell you the child does not have to come with you and obey the child custody or parent-time order, the police are lying to you. You can move to have the other parent and/or the child held in contempt of court. Yes, it can be done. If you’d like to meet with me to discuss the process, please call: 801-466-9277.

      Reply
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