Utah’s criminal code contains custodial interference provisions similar in some ways to the offense of child kidnapping but imposing less serious penalties when the person charged is otherwise legally entitled to some level of custody or visitation with the child. Depending on circumstances and history, the charge can be filed as a class B misdemeanor, class A misdemeanor, or third-degree felony.
Circumstances Creating a Custodial Interference Offense
In general, Utah law provides that the crime of custodial interference occurs when a person who is entitled to either custody of a child or visitation of a child prevents another person from lawfully exercising their custody or visitation rights. Utah Code 76-5-303 provides that the crime is committed when the person “takes, entices, conceals, or withholds the child from” another person during a period of time when the other person is legally entitled to custody or visitation with the child.
A custodial interference charge generally begins at the class B misdemeanor level. Penalties for a class B misdemeanor can include a maximum jail term of 180 days plus fines and surcharges.
If a person has been twice convicted of custodial interference during the previous two years, the charge can be filed as a class A misdemeanor. Maximum jail time for a class A misdemeanor is 364 days.
A felony offense is committed if, during the course of committing the crime of custodial interference, the person “removes, causes the removal, or directs the removal of the child from the state [Utah].”
This felony version of custodial interference is sometimes referred to informally as “crossing state lines.” However, it is important to note that Utah’s statute on custodial interference specifically requires removal “from the state.” Crossing another state’s state line should not be treated as meeting the elements required for a felony charge in Utah. For example, if a parent was in Montana with his child when a Utah court entered an order changing custody of the child, a Utah felony offense would not be committed simply because the parent crossed the Montana-Wyoming state line.
Examples of Custodial Interference in Utah
Below are a few examples of how a person could commit the crime of custodial interference under Utah law. Each example assumes that the person to be charged has some legal right relating to custody or visitation, and that the actions described are taken during a period of time when another person is entitled to visitation with or custody of the child.
Take – A parent “takes” a child from a daycare facility by picking the child up on a day when the other parent is scheduled to exercise parent time rights.
Entice – A parent “entices” a child when the parent notices the child riding a bike in his neighborhood and invites the child to come to her home for dinner rather than returning to the other parent’s home as planned.
Conceal – A parent “conceals” a child by denying that the child is at home when the other parent comes to pick the child up for his designated parent time.
Withhold – A parent “withholds” a child when the parent acknowledges that the child is there but refuses to allow a child to go with the other parent.
Note that these are just examples of conduct that could potentially result in a criminal charge of custodial interference. This list is in no way intended to be complete or exhaustive.
Affirmative Defenses to Custodial Interference
Utah Code 76-5-303(6) creates two possible affirmative defenses that apply specifically to a charge of custodial interference. These defenses apply in addition to the other affirmative defenses created under Utah Code 76-5-305.
The first affirmative defense is established by evidence that the person who had custody or visitation rights interfered with had in fact consented to the defendant’s conduct. This is essentially a complicated way of saying that one parent cannot consent to the other parent exercising parent time outside of the regularly ordered periods, and then complain that their custody and visitation have been interfered with.
The second affirmative defense is a little more complex. Utah Code 76-5-303(6)(b) requires evidence that the defendant’s actions were based on a reasonable belief that those actions were necessary to protect the child from abuse (which can include sexual abuse). This affirmative defense also requires evidence that the defendant, prior to engaging in the interfering conduct, had communicated to law enforcement or to the Division of Child and Family Services (DCFS) the defendant’s intent to engage in the conduct that would otherwise constitute custodial interference.
The notification or communication element of this affirmative defense is often missing, even in cases where a person interferes with custody for the purpose of preventing abuse or injury. If a parent is considering taking action that could be considered custodial interference, it is always a good idea to consult with an attorney first.
Penalties Outside the Criminal Justice System
One of consequences of a custodial interference charge that is most surprising to many individuals is the driver license suspension that can be imposed following conviction. Utah Code 53-3-220 provides for a potential 30-day driver license suspension for a conviction at the class B level, a 90-day suspension for a class A conviction, and a 180-day suspension for a conviction as a third-degree felony. This code section does allow the court with jurisdiction over the criminal case to enter an order of suspension for a shorter period of time than those periods set out by statute.
