Author Archives: Stacey G. Schmidt

​​​The Mindy McCready Mystery

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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.

Annulment for the Spouse of Kim Kardashian?

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After just 2 months of marriage, if Kim Kardashian and her husband,Kris Humphries were living in Utah, would he be entitled to an Annulment?  The answer is … MAYBE!

What Are the Stipulations for Annulment in Utah?

Many people mistakenly believe that one of the grounds for an annulment is the length of the marriage.  The length of the marriage is NOT one of the reasons that a person may obtain an Annulment in our state.  In Utah a person can get an annulment if:

• One of the parties was married to someone else at the time the parties married.
• One of the parties was under the age of 18, and the minor’s parent did not give legal consent.
• One of the parties was under the age of 14 (if before May 3, 1999) or under the age of 16 (if after May 3, 1999).
• One of the parties was previously married and that person’s divorce decree was not yet final, so the person was still legally married to someone else.
• The marriage was between parties of the same sex.
• The marriage was between close relatives (such as a brother and sister) who are not permitted to marry.
• There has been a material misrepresentation – such as a spouse not saying that he was still married, or that he was incapable of having children.
• There has been Fraud- one of the parties lies to their spouse about a material fact, which if the other party knew prior, may not have entered into the marriage.
• Refusal or inability to consummate the marriage.

Corwell v. Corwell and Annulment in Utah

In a 2008 Utah Court of Appeal case, Corwell v. Corwell, the parties executed an agreement to have their marriage annulled.  The parties’ stipulation stated, among other things, “that the parties had never resided together, that Hall had induced Corwell to marry her with various promises that were never fulfilled, that the parties had no children together….”  If a party makes promises to another party in order to convince the other party to marry them, such as “before marriage one party represents that she or he wants to have children.  Then after the  marriage, that same party states that they do not want children and never wanted children. In fact, that party cannot have children due to some medical condition known about prior to the marriage which was hidden from the other party.”  This would be an example of a situation which a party may be entitled to an annulment.

Despite the fact that the “Kardashian” marriage only lasted a couple of months, Kris could not get an annulment solely based upon the short term length of their marriage. However, if Kris could establish that there was some Fraud  or Misrepresentation made by Kim to him which induced him to marry her and then it later was discovered to be a lie or a misrepresentation, he COULD be entitled to an Annulment.

However, if Kris knew all along about Kim Kardashian’s “planned marriage,” then sorry Kris, I guess you’ll just have to get a divorce with the rest of us!

Temporary Marriage Contracts

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So I was watching the news this morning and heard that Mexico is considering passing a new law which allows for a 2 year temporary marriage. They contemplate that parties interested in a “trial marriage” would actually obtain a marriage license that lasts for a period of 2 years. If the marriage does not “TAKE”, then it would be terminated without the need for a divorce action.

My initial thought was…”this will certainly cut down on the need for divorce attorneys! So that would be bad (oh I meant good), RIGHT?” But then I realized that they would still be needing some type of marriage agreement or contract to deal with what happens during the “trial marriage.” (WHEW, we would still have business!)

But from a human standpoint, we are already such a “fast food, instant gratification” generation, this type of marriage would certainly create a “who cares” attitude toward the relationship. The level of committment is short term and likely a person entering into this arrangement should probably just go to “Vegas” for a weekend, get married and then do a quicky divorce after they had their fun! This would probably have a less traumatic impact on the “FAMILY” and what in several cases would likely result in children being conceived into a sham marriage with little or no hope of success.

Divorce Education Class for Parents

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The State of Utah requires all parties with minor children desiring to divorce to attend the “Divorce Education Class” and the “Divorce Orientation Class” before it will grant a final divorce.  These classes are beneficial to parents as it discusses the impact that divorce has on their children.  It encourages a mature approach to determining custody as well as keeping the children’s needs as the primary consideration, rather than the wants or needs of the parents.

The following are the GOALS of the Divorce Education Class as set forth on the Utah State Court’s website:
  1. Give parents information which will help them support their children’s emotional well-being both during the divorce process and later as a divorced family.
  2. Create a better understanding of how and why conflict between parents creates stress for children whether children are exposed to that conflict in an intact family or in a divorced family. The class will encourage greater effort by both parents to decrease the conflict their children are exposed to.
  3. Encourage parents to cooperate with each other in co-parenting their children if possible. If that is not possible, then parents are encouraged to engage in “parallel parenting.”
  4. Encourage parents to understand that, in most cases, children need continued and meaningful relationships with both parents if it is safe to do so.