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Can a Mother Keep Her Children From Her Separated Husband Until Court in Utah?

This is something of an intentionally gray area in the law, but that’s no reason or invitation to abuse it.

Many don’t realize that a parent cannot kidnap his or her own children simply because he or she chooses to do so without that parent’s consent. Why? Because each parent has the right to choose to travel with the children, and doesn’t have to obtain the other parent’s consent to do so.

It’s a different story if there is a court order awarding custody of children to one parent or the other.

Utah Code § 76-5-301.1. Child kidnapping.

(1)

(a) As used in this section, “child” means an individual under 14 years old.

(b) Terms defined in Section 76-1-101.5 apply to this section.

(2) An actor commits child kidnapping if the actor intentionally or knowingly, without authority of law, and by any means and in any manner, seizes, confines, detains, or transports a child without the consent of the child’s parent or guardian, or the consent of a person acting in loco parentis.

If a court order provides that the children will spend certain periods of time with one parent and certain periods of time with the other, then if a parent chooses to travel with his or her own children without the consent of the other parent when the children are scheduled by court order to be with the other parent, that could constitute kidnapping. Refusing to turn custody of the children over to the parent who is ordered to exercise custody of the children can constitute kidnapping as well.

Utah also as on the books a custodial interference law that provides, in pertinent part:

§ 76-5-303. Custodial interference.

(2)

(a) An actor who is entitled to custody of a child commits custodial interference if, during a period of time when another individual is entitled to visitation of the child, the actor takes, entices, conceals, detains, or withholds the child from the individual entitled to visitation of the child, with the intent to interfere with the visitation of the child.

(b) An actor who is entitled to visitation of a child commits custodial interference if, during a period of time when the individual is not entitled to visitation of the child, the actor takes, entices, conceals, detains, or withholds the child from an individual who is entitled to custody of the child, with the intent to interfere with the custody of the child.

So refusing to permit the parent to exercise custody or parent time as court ordered, or refusing to turn the children over to the other parent after your parent time has concluded constitute the crime of custodial interference.

But where there is no court order of custody or parent time and place, there is no law that requires you to allow the other parent to have contact with the children unless and until there is a court order providing otherwise. This also means, however, that if, while your back is turned (literally or figuratively) and the other parent is able to snatch the kids and take them with him/her, that’s not illegal either.

Some parents believe that they have the right to dictate the amount and the kind of contact the other parent will have with the parents’ children. It’s simply not true.

There are provisions in Utah law that permit a parent to withhold custody of and contact with children from the other parent under certain circumstances, for the protection of the children:

§ 76-5-305. Defenses [to charges of child kidnapping].

(1) It is a defense under this part that:

(a) the actor was acting under a reasonable belief that:

(i) the conduct was necessary to protect any individual from imminent bodily injury or death; or

(ii) the detention or restraint was authorized by law; or

(b) the alleged victim is younger than 18 years old or is a dependent adult, as defined in Section 76-5-111, and the actor was acting under a reasonable belief that the custodian, guardian, caretaker, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.

§ 76-5-303. Custodial interference.

(4) 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 individual 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 actor reports the actor’s intention to engage in the action, and the basis for the belief described in Subsection (4)(b)(i), to the Division of Child and Family Services or law enforcement.

As you can see, however, withholding custody of and contact with appearance children simply because you don’t want the parent to have custody of or contact with the children or because you want to torment the other parent and exploit his/her love and affection for the children by denying contact between that parent and his/her children, is not protected by law. It’s not illegal, but in the context of a divorce or child custody action in court, that kind of behavior will not be looked upon by the court with any degree of approval. Indeed, courts tend to punish parents who behave in such a manner. While you might get away with it for several weeks or even several months before the matter comes before the judge, the judge will almost surely hold you accountable, and will punish you accordingly, usually by curtailing your custody of and access to the children.

If you care about your children and want to maintain free and unfettered custody of and contact with them, then trying to deprive the other parent of the same is one of the worst things you could do or attempt to do.

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

https://www.quora.com/Can-a-mother-keep-her-children-from-her-separated-husband-until-court-in-Indiana/answer/Eric-Johnson-311

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