QUESTION:
I have a question about parent-time inference. My ex-husband is taking the children out of town last minute and his plans overlap and will interfere with my holiday parent-time. He is supposed to return the children on the 29th of December, so that the children can spend that time through New Year’s with me, as the Decree of Divorce provides. But at the last minute–on December 26th, while the kids were with him—he planned a trip to leave on December 27th and return late on December 31st. Since he has the children with him, denying me my parent time, is there anything I can do?
ANSWER:
If your decree of divorce provides that you are to have the child this year commencing December 29th, then clearly that is your time with the children and your ex-husband cannot unilaterally deprive you of this time. Thus he cannot, during his time with the children, “at the last minute plan a trip that won’t get him and the kids back until late December 31st” without violating the decree of divorce.
Can you do anything in response?
Yes. You can move the court 1) to award you make-up time that your ex-husband deprived you of; and 2) to hold your ex-husband in contempt of court and to sanction him for contempt, asking the court to impose any or all of the following sanctions for interfering with parent-time (See Utah Code § 78B-6-316):
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.
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(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.
You also could (although courts and the police frown on this–even though they shouldn’t), report your ex to the police for custodial interference. You’ll want to print a copy of the custodial interference law for the police because they will frequently act like they don’t know what you’re talking about. The police do this because they don’t want to enforce the custodial interference law. I’m not kidding. They will often say “there’s nothing we can do” and “this is a civil matter, not a criminal matter.” Lies.
Courts often see parents who report the non-compliant parent for custodial interference as people who stir up needless contention and who needlessly escalate custody and parent-time disputes by involving the police. Which is perverse because if the courts ostensibly prefer that a parent tolerate non-compliance with court orders over seeking their enforcement, what use are courts in the first place?
Anyway, here is the custodial interference statute:
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 competent jurisdiction.
(c) “Visitation” means court-ordered parent-time or visitation entered by a court of competent jurisdiction.
(2)
(a) A person who is entitled to custody of a child is guilty of custodial interference if, 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.
(b) A person who is entitled to visitation of a child is guilty of custodial interference if, during a period of time when the person is not entitled to visitation of the child, the person takes, entices, conceals, detains, or withholds the child from a person who is entitled to custody of the child, with the intent to interfere with the custody of the child.
(3) Except as provided in Subsection (4) or (5), custodial interference is a class B misdemeanor.
(4) Except as provided in Subsection (5), the actor described in Subsection (2) is guilty of a class A misdemeanor if the actor:
(a) commits custodial interference; and
(b) has been convicted of custodial interference at least twice in the two-year period immediately preceding the day on which the commission of custodial interference described in Subsection (4)(a) occurs.
(5) Custodial interference is a felony of the third degree if, during the course of the custodial interference, the actor described in Subsection (2) removes, causes the removal, or directs the removal of the child from the state.
(6) In addition to the affirmative defenses described in Section 76-5-305, 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)
(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and
(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.
(7) In addition to the other penalties described in this section, a person who is convicted of custodial interference is subject to the driver license suspension provisions of Subsection 53-3-220(1)(a)(xvii).
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