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How Do I Get My Ex Prosecuted for Custodial Inteference?

QUESTION:

What can I file in court for custodial interference? Is it just a matter of filing a motion for order to show cause? Or is there more to it?

ANSWER:

Custodial interference is a crime, so you cannot file a custodial interference action yourself (only a prosecutor can do that). The custodial interference law is found at Utah Code § 76-5-303.

To get the ball rolling on a custodial interference prosecution you need to report the custodial interference to the police or to the local county or city attorney. It almost certainly won’t do you any good, however. Why? Because the police and prosecutors hate the custodial interference law. No, really. I’m not kidding. Rarely, rarely, rarely will the police make an arrest or issue a citation for custodial interference, and rarely will the prosecutor file charges. They simply refuse to enforce the law. “Oh,” you may say, “but my case is so egregious that the police will surely help me.”

No, they won’t.

Is that legal? No. Is that right? No. But they get away with it.

Don’t believe me? Call the police and/or prosecutor; tell them your story. See if they do anything.

You can, however, file against your ex a motion for order to show cause as to why he or she should not be held in contempt of court for his noncompliance with parent-time  and/or custody orders. Utah law has specific laws that provide for sanctions for parents who fail or refuse to comply with custody and/or parent-time orders:

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.

There are also these sanctions available to the court to impose for contempt of court:

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 Family Law, LC | divorceutah.com | 801-466-9277

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