Child custody disputes are a complicated and time-consuming issue for law enforcement and can be emotionally trying and frustrating for parents and custodians. The Unified Police Department would like to provide some tips and answers to frequently asked questions regarding this subject to help citizens navigate the system as they are faced with custodial conflicts.
The difficulty facing law enforcement related to custody disputes is based on the "gray area" between a violation of a civil order and a potential violation of criminal law. In other words, when a parent denies another parent access to their children for an amount of time, when will the prosecuting authority for the jurisdiction file criminal charges?
There is not a simple answer to this question and the ultimate decision would have to be made by the prosecuting entity of the jurisdiction where the alleged violation occurred and would have to be made based on all the facts of the individual case.
See state code concerning custodial interference
Custody disputes are often very complex and many times numerous court orders are issued, with each order changing or adjusting the previous one. The ultimate decision regarding the filing of criminal charges rests with the prosecuting entity of the jurisdiction where the violation occurred.
The Unified Police Department would like to offer the following suggestions to citizens involved in custody disputes as a guide to assist them as they try to resolve this difficult issue:
If you would like to contact a law enforcement professional who can provide advice regarding your individual circumstances or if you believe a criminal violation has occurred please contact your local law enforcement agency. If you reside within the Unified Police Department's jurisdiction, please call 801-743-7000.
Utah State Code addresses this situation in the following section and identifies the elements of the crime of Custodial Interference as follows:
76-5-303. Custodial interference.
(1) A person, whether a parent or other, is guilty of custodial interference if, without good cause, the actor takes, entices, conceals, or detains a child under the age of 16 from its parent, guardian, or other lawful custodian:
(a) knowing the actor has no legal right to do so; and
(b) with intent to hold the child for a period substantially longer than the parent-time or custody period previously awarded by a court of competent jurisdiction.
(2) A person, whether a parent or other, is guilty of custodial interference if, having actual physical custody of a child under the age of 16 pursuant to a judicial award of any court of competent jurisdiction which grants to another person parent-time, visitation, or custody rights, and without good cause the actor conceals or detains the child with intent to deprive the other person of lawful parent-time, visitation, or custody rights.
(3) Custodial interference is a class A misdemeanor unless the child is removed and taken from one state to another, in which case it is a felony of the third degree.
Amended by Chapter 255, 2001 General Session
As this law reads in Section (1)(b), it is a violation to intentionally "hold the child for a period substantially longer than the parent-time or custody period". This allows for an interpretation of the definition of "substantially longer" and would have to be evaluated on a case-by-case basis. A violation of Section (2) addresses when the parent or guardian has actual physical custody and does not allow the other parent to have visitation or parent-time. This section also requires interpretation by a prosecutor to determine if the parent with actual physical custody "without good cause...conceals or detains the child with intent to deprive".
Child visitations are orders granted under the direction of the court. It is a Civil Action, and is not enforced by law enforcement. A person may request the documentation of a conflict or disagreement regarding the visitation orders. This report should reflect the officer's observations.
Any forced visitations must be ordered by the court and enforced by the Unified Police Department's Civil Process Officers. This requires a fee to be paid.
See Writ of Assistance for further details.
Further information regarding visitation requirements and child support. There is also a Co-Parenting mediation program available to assist parents at http://www.utcourts.gov/mediation/cpm/faq.asp
A writ will very rarely be served or executed by any police officer. Writs are almost always served by an officer . It is also very rare for an officer assigned outside the Civil Division of the Sheriff's Office to execute or serve a writ.
Writ by definition is an order or precept in writing, issued in the name of the state or of a court or judicial officer.
Writ of Assistance is an order generally not following any specific format, but will usually direct the sheriff to assist the plaintiff in resolving some issue which has been previously addressed in another court order but which has been disregarded by the defendant.
The Writ of Assistance is most commonly issued by a court authorizing law enforcement officers to take custody of a child. The statute defines Writ of Assistance as the authority to do so. (78-45c-102 (17), UCA)
It is sometimes referred to as a Writ to take Physical Custody of a Child. This order will outline the facts of the case involving the child and direct the officers of what the court wants done. It is determined by the court's analysis of just how profound the risk is of the child suffering serious imminent physical harm or removal from this state. (78-45c-311 (1), UCA)
The writ should include the facts of the danger to the child, direction for law enforcement to take physical custody of the child immediately, and provide for the placement of the child, once removed. The respondent must be immediately served with the writ, once the child has been taken. (78-45c-311 (4), UCA)
The Writ of Assistance to take physical custody of a child is enforceable throughout the State of Utah. (78-45c-311 (5), UCA)
A Writ of Assistance may not be specified as a writ for the removal of children. These are vague, and usually issued to assist the plaintiff in resolving some previously addressed court order.
A fee is required to serve a Writ of Assistance. This must be done by the Civil Process Deputies of the Sheriff's Office. Refer the complainant requesting service of the writ to the Civil Division of the Sheriff's Office.
Sheriff's Office Administration Building
3365 South 900 West, 1st floor, south end of building
South Salt Lake City, Utah