Your Ex can be extremely difficult to co-parent with. All child custody exchanges may be at the police station and yet you still got charged with Custodial Interference and must appear in court. What is Custodial Interference in Utah and what can you do about it?
What constitutes interference with child custody in Utah?
Prosecutors don’t like child custodial interference cases. Prosecutors practice criminal law and don’t do family law because they can’t stand it. Therefore, custodial interference is not commonly charged.
This author reviewed the largest justice courts in Utah and only found one case charging custodial interference. This author’s last custodial interference case handled was tried to the bench and won out of Lehi, where it was the only reported charged case on the court calendar as of 09/13/2020.
You cannot be charged with custodial interference unless you are intentionally and substantially interfering with your ex-spouse’s visitation or custody periods as expressed in a court order.
Custodial Interference is a Domestic Violence Tagged Crime. You can lose your gun rights if convicted. Free Consult: (801) 373-6345.
Elements of custodial interference:
You can’t accidentally commit custodial interference. Further, a “court order” is defined to mean a valid, existing court order of visitation or child custody signed by a judge.
Driver’s License Suspension – 90 Days.
First you lose your Utah driver’s license if convicted of custodial interference.
30 days for a Class B Custodial Interference Conviction. Your license shall be suspended for 30 days unless you can persuade the sentencing court to a shorter period.
90 days for a Class C Custodial Interference Conviction. Your license shall be suspended for 90 days unless you can persuade the sentencing court to a shorter period.
180 days for a 3rd Degree Felony Interference Conviction. Your license shall be suspended for 180 days unless you can persuade the sentencing court to a shorter period.
Driving on a Suspended License—Class C Misdemeanor. If you are caught driving on a suspended driver’s license your license suspension period will be increased. Normally, the Utah Driver’s License Division will order a like term suspension if you are caught driving during your original suspension period. This is not a good thing and these suspension periods can start stacking up fast.
Class B Misdemeanor. Regular, first time offense of custodial interference is a Class B Misdemeanor.
Class A Misdemeanor. A standard Class B Misdemeanor is enhanced to a Class A Misdemeanor if you have been convicted twice in a two-year period of custodial interference.
3rd Degree Felony. If you take your child out-of-state you can be charged with a 3rd Degree Felony. You can be charged with custodial interference if you direct someone else to take the child out-of-state or cause the child to be removed from the state. The out-of-state removal language is very broad, and thus very defendable if you are charged with Felony Custodial Interference.
Enhanceable Offense – YES.
Child Custodial Interference is an enhanceable offense. Two or more convictions within the two-year period prior to your current Custodial Interference charges is enhanced to a Class A Misdemeanor, punishable by up to one year in the county jail.
Probation. For a Class B or Class Custodial Interference conviction you will likely be placed on court probation for 12 months. Due to the nature of custodial interference cases being highly charged domestic relations matters, there is a good chance your sentencing judge will pay close attention to your case for any probation violations. Supervised probation for Felony Custodial Interference conviction is very likely.
Fine. The Utah bail schedule fine for a Class B Misdemeanor is $680. For a Class A conviction, it goes up to $2,500. Like all fines, they can generally be paid over the probationary period.
Jail. Class B Misdemeanor Custodial Interferences convictions can place you in jail for up to six months. Class A Misdemeanor Custodial Interference convictions can place you in the county jail for up to one year. Any significant jail time is unlikely for any Misdemeanor Custodial Interference conviction. Felony Custodial Interference is a different story. You need to hire an experienced attorney if you know jail time is coming.
Defenses to Custodial Interference.
The Custodial Interference statute itself has enumerated affirmative defenses and they are:
(a) The complaint of conduct was consented to by the person whose custody or visitation of the child was interfered with; or
(b) Your alleged misconduct is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and before taking action you reported the matter to the police or the Division of Child and Family Services (“DCFS”).
What is reasonable under the circumstances? Was there consent based on past conduct between you and your ex-spouse? All these defenses can be asserted by a competent, Utah criminal defense attorney. Further, jury members have kids too and many are divorced. They will be sympathetic to reasonable arguments.
Child Kidnapping versus Custodial Interference. What’s the difference?
Child Kidnapping charges are serious felonies with mandatory prison sentences. Child kidnapping can be between ex-spouses, but also can be broader to include kidnapping child under the age of 14.
Child kidnapping convictions require registration on the Utah Sex and Kidnap Offender Registry. See Utah Code Ann. 77-40-101 (2020).
Jake Gunter. Nearly 20 years experience.
Is Parental Alienation a Crime in Utah? – NO.
Parental alienation is an argument in your child custody case in family court, but is not a chargeable crime in Utah.
Can I file Child Custody Interference Charges Against my Ex-Spouse? – NO.
The only person who can file any charges is the prosecuting attorney. You can’t file charges, the police don’t file charges, nor does DCFS. All parties involved can request that police reports be filed to document the circumstances, but the usual reply from the police will be that it is a “civil matter.” A “civil matter” is the greatest way for police to avoid family law situations.
Is Interference with Child Custody a Felony in Utah? – YES.
If you take the children out-of-state against child custody orders you can be charged with felony custodial interference. Asking someone else to take the child out-of-state will also get you charged.
CALL AN EXPERIENCED CHILD CUSTODY INTERFENCE DEFENSE ATTORNEY JAKE GUNTER. (801) 373-6345. Free Consults. Flexible payment plans.
Utah criminal defense attorney Jake Gunter and Howard Lewis & Petersen, PC is located in Provo, Utah and serves clients throughout all of Northern and Central Utah including Salt Lake City, Midvale, Sandy, West Jordan, North Salt Lake, Bountiful, South Jordan, Clearfield, Woods Cross, Draper, Farmington, Centerville, Layton, Ogden, Lehi, Provo, Orem, Park City and the counties of Davis, Salt Lake, Weber, Utah, Tooele and Summit. He commonly represents down south clients in Manti, Moab, Cedar City and Filmore.
Effective 5/9/2017
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).
Amended by Chapter 181, 2017 General Session
