Criminal Custodial Interference

[Father4life]

My question involves a child custody case from the State of: Utah

Divorce took place in CA. I was awarded joint legal and joint physical and for parent time I got Monday-Wednesday afternoon. My Ex got From Wednesday afternoon to Sat Morning. Weekends were rotated.

We later all moved to UT because of my job. I got a domestication of foreign decree filed within the county we reside in UT. Now my work schedule changed to 3 consecutive days on duty and off duty for 4 days. I’m a firefighter. We never got the decree modified to compliment my work schedule but we came to a verbal agreement on a parent time schedule. My daughter would be with her mother on my 3 days on duty, we would split one day and I would have 3 full days of parent time before returning back to duty. We practiced this schedule for the past 3 years. We have been in UT for 7 yrs. I’m remarried to a wonderful lady who has 3 young kids of her own and she is a role model step mother to my daughter. The Ex has married a guy who is a controlled substance abuser in remission and has been sodomizing the Ex according to the Ex herself.

During the past three years my Ex has failed to pay on half of $4000 in medical, dental, and orthodontic treatments for our daughter and she relocated my daughters 6th grade enrolment without my consent.

Now most recently the Ex filed a petition for modification for the parent time schedule. The Judge ordered us to go to mediation. All this was under the pretense the Ex was going to be residing in UT. At the mediation appointment the Ex dropped the bomb and relayed through the mediator she is going to move back to CA and she wants me to cooperate with my daughter residing in CA for the school year and reside with me for summer. So the Ex left for CA the 2nd week of June with no job lined up in CA and moved into a home provided by a family member down there. She left the mediation process wide open with no agreed stipulation/modification for parent time, and she left my daughter behind with me.

55 days later I gave her a call and said if we don’t come to terms soon then I’m going to have to enroll our daughter in 7th grade here in UT. She was pissed. She drove up here that night under the false pretense she only wanted to spend time with my daughter in the local area just for the weekend. She took my daughter and drove back to CA.

She now text me messages stating she will not let me have any parent time till I comply with her proposed stipulation/modification to the decree.
According to Utah Criminal Code 76-5-303 she has engaged in criminal custodial interference. 76-5-303.5 States it is a third degree felony for directing the child across state lines.

So what can be done here with the courts?

Has the Ex now hurt herself with regards to pursuing what she wants for a modification?

Does any of this now help me with pursuing that my daughter reside with me during the school year and allowing my daughter to spend the summer time with her mother; but not allowing her husband to be around my daughter until he receives a psychological evaluation?

[aardvarc]

We never got the decree modified to compliment my work schedule but we came to a verbal agreement on a parent time schedule.

What counts is what's on file with the court. If one side decides they don't want the verbal agreement anymore, the court order rules. If either side wants it changed, they need to go back to court for a modification.

The Ex has married a guy who is a controlled substance abuser in remission and has been sodomizing the Ex according to the Ex herself.

Unless mom herself tells the court this, it's hearsay and won't be considered. Even if mom were to make such implications, unless there's been a formalized complaint to police, it STILL won't make much difference. Courts give consideration to CONVICTIONS.

During the past three years my Ex has failed to pay on half of $4000 in medical, dental, and orthodontic treatments for our daughter and she relocated my daughters 6th grade enrolment without my consent.

If you haven't already, your recourse is to file a petition for relief or to have her held in contempt of the court's order.

At the mediation appointment the Ex dropped the bomb and relayed through the mediator she is going to move back to CA and she wants me to cooperate with my daughter residing in CA for the school year and reside with me for summer. So the Ex left for CA the 2nd week of June with no job lined up in CA and moved into a home provided by a family member down there. She left the mediation process wide open with no agreed stipulation/modification for parent time, and she left my daughter behind with me.

That actually bodes well for you. It's an absolute acknowledgement from mom that she considers you to be a fit parent, one who is completely willing and able to care and provide for the child.

55 days later I gave her a call and said if we don’t come to terms soon then I’m going to have to enroll our daughter in 7th grade here in UT.

Personally, I'd have not warned her. She's an adult and was therefore responsible for knowing and acting by the court's deadline. If she dallied around long enough and you enrolled the child in school, the court wouldn't have typically order a mid-school year change. Now I have to ask....are you working with an attorney? (Most attorneys would have strategized that out right off the bat.)

She was pissed. She drove up here that night under the false pretense she only wanted to spend time with my daughter in the local area just for the weekend. She took my daughter and drove back to CA.

Ugh.

She now text me messages stating she will not let me have any parent time till I comply with her proposed stipulation/modification to the decree.

Despite mom's power trip, it's not up to her. Double check with your moderator (and your attorney), but until there's a new formal court order in place, mom is STILL held to the original (or most recent) order as far as your visitation.

According to Utah Criminal Code 76-5-303 she has engaged in criminal custodial interference. 76-5-303.5 States it is a third degree felony for directing the child across state lines.

Mom's threats to do so mean little or nothing. What matter is that mom ACTUALLY interferes with custody. You need to refer to whatever the CURRENT court order says and act accordingly. If the current order says that you get the child starting on Monday, then you need to follow whatever the order directs you to do in order to exercise that visitation. If the child isn't made available according to the order, then you find a way or ways to document it (ie have a witness or request a police report) and get a complaint for contempt before the court.

While yes you're technically potentially describing a crime here, in MOST situations where a couple is still in the mediation phase, police are going to refer the matter back to the court with jurisdiction, which would be UT for now. The downside of a criminal complaint in UT when mom is in CA is that you may actually make things worse, because you'll only spur mom to STAY in CA, rather than work via the UT system. And if mom can outrun you for a few months until the child is considered a resident of CA rather than UT, she can really throw a wrench in the gears and petition for the whole thing to change to CA courts (which she may or may not GET, but she can certainly drag out the process for many months or even another year).

You REALLY need to be working with an attorney. This has gone WAY beyond a do it yourself project.

So what can be done here with the courts?

If she's actually in contempt, you need to get back before the judge. If time for submission of a mediated plan has run out, then you ask for YOUR version of the plan to be approved by the court, citing mom's failure to participate or comply.

Has the Ex now hurt herself with regards to pursuing what she wants for a modification?

Not until her actions are tolled before the court. Once that happens, yep, you can expect the judge to be less than happy with her.

Does any of this now help me with pursuing that my daughter reside with me during the school year and allowing my daughter to spend the summer time with her mother;

Yes, it probably does.

but not allowing her husband to be around my daughter until he receives a psychological evaluation?

Not unless you've got more than hearsay about her husband. Independent report from a police officer or social worker? Convictions? If not, then it's only an allegation. And not to be a "smartass", but honestly, most ex's don't discuss episodes of sodomy, in either the context of that sodomy being part of a sexual battery against them, or in the context of that sodomy being part of their "love repertoire" - so regardless of the context of the sodomy, either consentual or non-consentual, (a) unless MOM is willing to discuss sodomy with the judge, it's not going to matter, and (b) unless you can prove that it somehow puts the CHILD in danger, it's irrelevent.

Attorney. You need one. And you need one working on this BEFORE enoughtime passes for CA to possibly have jurisdiction over the case.

[Father4life]

I recognize the importance of taking action before time lapses in favor of CA assuming jurisdiction over the case.

I did hire an attorney and I had him present for the mediation process. Although I am the kind of person who always seeks out 2nd opinions; so that is why I’m posting here on this website. I worry that his response time is going to be less then favorable. I’m prepared to move on if necessary. Anyway he did mention that we should file OSC for Contempt but to get a hearing date may take 3 weeks. Is this OSC for contempt the right thing to do?
What else should I do?

3 weeks till a hearing is a long time. School starts in 2 weeks and I feel if I don’t act on something ASAP the court isn’t going to take me seriously. I recognize I have a responsibility to have my daughter enrolled in school and attend as required; so with that in mind I want to drive to CA and pick her up and return her back to my residence in UT. If she starts school in CA before an attempt to have her returned back to UT then I seem to think it may be harder for me.
Could this be true?
Can I legally do this?
What kind of attitude would the court or custody evaluators give me for such actions?
Should I ask local law enforcement there in CA to assist me by standing by to ensure there is no domestic dispute or to document any trouble?

I’m assuming that a CA law enforcement agency would say to my Ex it is out of their jurisdiction and I can have parent time with my daughter and take her out to eat for breakfast; and if so then you know where I’ll be headed next. Would I be breaking any laws at all?

If my Ex is present I can expect trouble with a parent time exchange. But if my daughter is being looked after by a family member like an Aunt or her step father then can I state right of refusal and take custody at that time?

I’m sorry if I’m being redundant with my questions. This whole situation has me really upset. I’m just looking for reassurance and guidance.

[aardvarc]

Is this OSC for contempt the right thing to do?

No one can possibly second guess your attorney, who has ALL of the relevent facts of your case.

I want to drive to CA and pick her up and return her back to my residence in UT.

Think mom is going to go along with that? Doubtful. Mom's MORE likely to call police, who are going to tell you that this is a matter for the civil courts and you need to address it THERE. IDoing to would ALSO put mom on the defensive such that she may consider moving into HIDING, such that you'd not easily find her OR the child again. Child custody cases are not "smash and grab" or "self service" issues - there's a process, and although it's painfully slow, you need to follow that process, under the guidance of your attorney, unless you want to risk making things much WORSE.

If she starts school in CA before an attempt to have her returned back to UT then I seem to think it may be harder for me. Could this be true?

Could be.

Can I legally do this?

Your attorney, and ONLY your attorney should answer that question.

What kind of attitude would the court or custody evaluators give me for such actions?

Realistically? It would put you on about equal footing with mom.

Should I ask local law enforcement there in CA to assist me by standing by to ensure there is no domestic dispute or to document any trouble?

They can absolutely stand by. They can also remove you from the property if that's what mom wishes, unless a court order in hand SPECIFICALLY orders law enforcement to REMOVE the child - and that's NOT what you have. You'll be creating a lot of fuss and drama, probably in front of your daughter, and are likely to harm, more than help your case in the process.

I’m assuming that a CA law enforcement agency would say to my Ex it is out of their jurisdiction and I can have parent time with my daughter and take her out to eat for breakfast; and if so then you know where I’ll be headed next.

You're assuming wrong. If the child is currently with mom, law enforcement is going to KEEP it that way and tell you to deal with it in court - law enforcement is ONLY going to get involved if there is a disturbance between you and mom, or if mom asks you to leave and you don't (ie arrest for trespass after warning, in which case you just gave mom an excellent shot at a restraining order against you), or to enforce a court's order that the child be removed from the home.

Would I be breaking any laws at all?

It's not against the law to show up at mom's house and ask for the child. Anything other than quietly leaving after being told "no" could turn into a restraining order at best, and all sorts of criminal charges against you at worst, depending on exactly what happens next.

I;m just looking for reassurance and guidance.

You really need to rely on your attorney for this. Don't shoot yourself in the foot by coming up with "schemes" to get the child back. You will only hurt your own case. There is a process, and there's no way around that process if you hope for an outcome in your favor. Mom's acts of working outside the process will hurt her. If you work WITHIN the process, you come out smelling like the good guy. If you turn around and also attempt to work outside the process, then you'll only muddy the waters for the court and put yourself on the same poor level as mom, and turn this whole thing into a much longer, drawn out, and expensive case than it already is. Listen to your attorney.