Child abuse is one of the worst things that can happen to a parent. Somehow you learn that your child has been abused. Obviously, you cannot let your child go back into an abusive situation. The following information will help you to know what you can and can’t do, and what you should do, when there is a custody order in place. This article assumes that the suspected abuser is the other parent.
1. Can I Keep The Child From Going to Mom/Dad’s?
You do not need to comply with a custody order when you have a reasonable belief it will protect the children from abuse and you’ve informed either DCFS or the local police that you will not be dropping the children off. You should be aware, however, that you may still have to deal with a custodial interference criminal charge. Custodial interference charges are rare, but possible nonetheless. Your reasonable belief is only a defense to the charge, not an immunity to criminal prosecution.
When you do this, you need to make sure that the belief is “reasonable”. “Reasonable” belief could be that the child came home from parent time and discovered bruises that night. Another could be that your child expressed to you that they were abused by the other parent and there are injuries.
2. When There Is Child Abuse You Need To Take Legal Action
There are several steps you can take. What follows are some important actions to consider:
A Motion for a Temporary Restraining Order or Child Protective Order
Both actions will protect the child and potentially restrict the other parent’s parent time if successful. Which one you pick really depends on your situation. For a motion, you need to have an existing action (such as your divorce). Your motion will likely go before the same commissioner who presided over your original case. If the motion is successful, it will be granted typically within 24 hours.
A child protective order is done in Juvenile Court and is a new action. Typically it will be handled by a judge (depending on where you are in Utah). This is also potentially granted within 24 hours.
Both of them require largely the same proof to have them entered. Which one you pick depends on various factors. Consult with us if you have questions.
A Petition to Modify Custody
If the other parent is abusing the child, you will likely need to change custody on a more permanent basis as well. Remember, a restraining order or protective order are only temporary solutions.
A petition to modify custody (either from a divorce or previous custody decree) is necessary when a substantial change has occurred and changing custody is in the best interests of the child. Child abuse fits both of these requirements. In order to do this, you need a petition and a filing fee. You can file the petition and motion for a temporary restraining order at the same time.
A Motion for Temporary Orders
This particular action is highly situational. I would not recommend you do both a restraining order and a motion for temporary orders unless circumstances allow for it. Sometimes, you will have facts that will allow you to do both.
A motion for temporary orders to change custody on a modification works almost exactly like a restraining order or protective order, but is much slower. The time to get a hearing on these is typically a month. In most cases, if you could succeed on a motion for temporary orders, you would succeed on a temporary restraining order. You’re better off seeking the restraining or protective order. Consult with us if you have questions.
3. What Happens If Nothing Works
Many parents get frustrated if they know the other parent is hurting the child, but the court refuses to change custody temporarily. The most common reason courts deny a change of custody is that there is not sufficient evidence of wrongdoing. Often times statements by neighbors, friends, or family are not enough. Courts want to know what DCFS has to say.
If DCFS is not substantiating your claims, or has not incriminated the other parent, you may not succeed on your request to change custody. Every commissioner in Utah is different, however. The strategy you use should depend on the commissioner assigned to your case. We regularly work with commissioners, and have a working knowledge of what they will often do.
Now, if you are denied, don’t lose hope. You need to proceed with your custody modification. Keep a sharp eye out for any further abuses and call the police if something does happen. Although this would prove little comfort to a parent who is worrying about their child, the legal system moves slowly. Know that before you start this endeavor.