Custodial Interference and Writ of Assistance

One of the ways you can enforce your parent-time or custody rights is through a Writ of Assistance.  You should know up front that most judges and court commissioners consider such an action a bold, even an extreme move, but when you’ve exhausted every other attempt to exercise your parent-time or custody award without success, a writ of assistance may not only be acceptable, it may be your only remaining viable option.

So what do you need to do to obtain a writ of assistance to enforce your Utah parent-time or child custody order in Utah?  Believe it or not, there are no rules governing the process.  There is a specific statute in the Utah Code that governs the procedure for obtaining writ of assistance where there is a dispute over child custody between parents separated geographically in two different states (Utah Code § 78B-13-311). That statute would not apply when seeking to obtain a writ of assistance to enforce your Utah parent-time or child custody order in Utah.  However, § 78B-13-311 is a good “template” for crafting your motion for a writ of assistance to enforce parent-time.

If I were to adapt the procedures of § 78B-13-311 to enforcing a Utah court’s parent-time orders in Utah, here are the steps I would follow:

1. File with the court a verified motion (not a petition) seeking enforcement of a parent-time order and for the issuance of a writ of assistance to take physical custody of the child pursuant to the terms of the parent-time order.

2. You DO NOT need to assert in your motion—as a basis for the issuance of the writ—that you believe the child is likely to suffer serious imminent physical harm or removal from this state.  Now clearly if you do believe the child is likely to suffer serious imminent physical harm or removal from this state, you should mention that.  But don’t feel compelled to fabricate sensational fear-mongering claims to bolster your argument.  If you have a court order granting you parent time that the other parent is refusing to comply with, that is enough to support of motion for a writ of assistance.  Don’t undermine the strength of your case by lying.

3.  Where the circumstances are appropriate, DO state in your verified motion for writ of assistance that both you and the child will suffer irreparable harm if compliance with the parent time order is not compelled because time lost can never be found.  Sure, one could argue that if you are denied parent time this weekend you could just make it up next weekend, but if you have other activities planned with the children, such as a wedding or a family reunion, an awards ceremony, a special opportunity to meet an important dignitary, etc., those experiences are transient and cannot merely be “made up” or duplicated.  For you and/or the child to miss out on enjoying these special occasions together is to suffer irreparable harm. Don’t be afraid to assert it.

4.  Include in your proposed writ of assistance that you submit to the court for its signature:

a) recite the facts upon which the writ of assistance is based, including:

5.  Serve the other parent with the court documents.  Ensure that the law enforcement officer serving the writ serves the documents in the proper order:

a) First, ensure that the law enforcement officer immediately executes the writ of assistance and restores the child to you, in compliance with the parent-time order;

b) Then have the law enforcement officer serve the other parent with your motion, order granting the motion, and the writ of assistance itself.

I have prepared a sample writ of assistance form, if you would like to use it.  Click here for the PDF file.  Bear in mind that I am not your attorney.  An attorney-client relationship does not arise simply by reading a blog or looking at forms.  You came to this blog to read about custodial interference and enforcement of parent time, and I have given you some information about it. I provided you with a sample form if you wish to use it, but you are responsible for the decision to pursue a writ of assistance and how you go about that.  To ensure that your effort to obtain a writ of assistance is done correctly, it is always advisable to consult a good divorce and family law attorney.  Click below if you would like to schedule a meeting with me today.