Custodial Interference and Writ of Assistance

Special Circumstances
Special Circumstances

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:

i) the provisions of the parent-time order;
ii) the history of the other parent’s non-compliance with the parent-time order to date; and
b) direct law enforcement officers to take physical custody of the child immediately;

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.


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  • Kent Pitcher 385-900-6687
    November 7, 2017 2:57 pm

    I have not seen my 16 year old daughter for a year, and my 14 year old son for 5 months.
    My daughter will be 17 this month.
    I have an attorney, but may need to find a new one. He does not want to file a motion for writ of assistance.
    The statutes states a writ of a assistance is only for serious imminent physical harm or likely removal from this state. My children are not in physical harm. but are being emotionally harmed by being kept from me. But that statute does not mention mental or emotional harm.
    How many times have you won a case for a motion for writ of police assistance when there was not physical harm, but only emotional and mental harm or alienation?
    P.S. my attorney talked me into stipulated that I can’t call police to enforce parent time but my ask for a writ of assistance. It was a mistake. I should not have stipulated. Otherwise I would use police directly without writ.

    • Thanks for your question.

      The statute pertaining to writs of assistance is only for a specific kind of writ of assistance. The code section you’re thinking of is Utah Code Section 78B-13-311 (Writ to take physical custody of child); it applies when there has been “the filing of a petition seeking enforcement of a child custody determination[.]” But you’re not trying to take custody, you’re just trying to exercise your parent-time or visitation.

      You can move for a writ of assistance to enforce parent-time only.

      Don’t worry too much about your agreement not to call the police. It was a stupid thing to agree to, but the good news is that asking the police to help you enforce your parent-time is almost always a waste of time because without a writ of assistance that specifically commands the police, by court order, to help you the police usually choose to do nothing, lie to you and tell you they can’t help you because “this is a civil matter” (it’s not only a civil matter, it’s a crime: Utah Code Section 76-5-303, Custodial Interference), and then tell you that if you don’t clear off they’ll cite/arrest you for disturbing the peace of “refusing to obey the lawful order of a peace officer”.

  • Hi there. My step childrens mother moved with the kids (2) to Utah from California, and we moved to Utah 2 years later (6/2018). She is now denying our parent time with them for times specified and outlined in the California custody agreement. We just learned we need to file the foreign order to enforce it, however, would we be able to get a writ of assistance to enforce the our of state order asap in the meantime?

    • You would need to apply to the California court for enforcement of the California order, then register any such order in Utah for enforcement in Utah. By the time that happens, you could probably have registered the original California orders in Utah.

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    January 14, 2021 7:39 am

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