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Utah Divorce Advice

Recently, the country music superstar, Mindy McCready was accused of unlawfully keeping her son, whom she did not have custody. McCready’s mother has custody of the star’s 5 year old son. A Florida court issued an order for law enforcement authorities to pick-up the child from McCready once she could be located with the child. As reported in the news, the child was located and removed from McCready’s care by Arkansas authorities and placed in foster care with the state of Arkansas.

This begs the question, can a parent be charged with kidnapping their own child? In Utah, it is more likely that a parent, that does not have custody of a child, and takes or keeps them when they are not entitled would be criminally charged with custodial interference.

The Utah State Code §76-5-303 defines custodial interference as follows:

“(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.”

This means that if you are legally entitled to have the custody of a child, by a valid custody order, and another parent takes the child without permission, court order and/or is not otherwise entitled to have the child in their care for that period of time, the parent could be charged with custodial interference.

This also means that even though you are entitled to have custody of a child, if another parent is entitled to have visitation or parent-time with the child, and the custodial parent interferes and/or denies the other parent time with the child, the person with custody could also be charged with custodial interference.

It is important to note that there MUST be a custody order in place, signed by a Judge which designates which person has custody. The Order further needs to specify the schedule or days when the non-custodial parent may be entitled to visitation or parent-time with the child.

If a parent is denied their visitation or parent-time with the child to which they are entitled, they can report this and the offending party can be charged with custodial interference. Likewise, a parent that is entitled to visitation or parent-time with a child, and the non-custodial parent fails to return the child to the person with legal custody, the non-custodial parent could be charged with custodial interference.

It Utah, custodial interference is a class B misdemeanor. However, this is an enhanceable charge. Which means that once a person has been charged and convicted of custodial interference, if they are charged again it would not be a class B, but a class A misdemeanor. If the offending party removes the child from the State of Utah, it could be charged as a Felony.

Party’s often have extenuating circumstances which they argue would be a justification for not returning the child to the other party or parent, such as allegations of abuse or neglect. Prior to denying another party the custodial or visitation rights to which a court order mandates, you should always consult an attorney to ensure that you are not going to be charged with custodial interference or other detrimental legal consequences.

In the case of Mindy McCready, if she were in Utah she could have been charged with a class “B” misdemeanor for custodial interference. However, if she unlawfully removed the child from the State as well, she could be charged with a Felony. It appears from the news today, that the Judge in Mindy’s case allowed her to walk out of court, and she was happy. I am not certain that a Utah Judge would have been so understanding.

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