Utah legislators considered a bill this year that, if passed, would have made it a criminal offense for one parent to keep a child from the other parent in a way that deprived the other parent of seeking relief from the courts.
The inspiration behind House Bill 173 is a little girl now living in rural Cache Valley. She is the daughter of Kurt Falslev of Benson, and at age 9, she now wears a tracking device so she can be found if her mother attempts to flee the area with her again.
Rep. Val Potter sponsored the bill with support from the Cache County Attorney’s Office after they were unable to prosecute the child’s mother last year, but it failed to reach the floor of the Utah Senate.
“The state really should not be weighing in on what parent gets custody and how much time … that should be determined by private parties and by the court,” Cache County Chief Deputy Tony Baird said. “What we do have an interest in is making sure both parties have an opportunity to go before the court and assert those rights. This bill penalizes someone for not allowing the other parent to get into court and litigate that issue.”
Falslev said he and his former wife, a native of Mexico, were married there in 2007. Their daughter was later born there, and when the baby was four or five months old, the family moved to Benson.
About a year later, Falslev said his then-wife approached him at the family farm and said her great-grandmother was seriously ill, so they returned to Southwestern Mexico to be with her family.
However, on their arrival, Falslev said, his wife’s great-grandmother appeared to be in good health. Less than 10 days later — just before the couple was to return to Utah — he said he was presented with divorce papers that he refused to sign and he found himself on the street.
It would be 8 years before he saw his child again.
When Falslev returned to Utah, he filed locally for divorce and custody of his daughter. The papers were served to his estranged wife through a stake president near her, and she reportedly signed them and the divorce was granted in February 2009.
Over the next eight years, Falslev said he had phone contact with his daughter twice for mere minutes. His former wife continually changed her phone number, and when she eventually moved back into the United States, he was not notified.
Last year, a photo of the child surfaced on Facebook, and with some detective work, it led authorities to his daughter in Minnesota, where she was living with her mother.
Once they knew where she was, Falslev was able to hire an attorney and obtain a court order authorizing him to pick her up and bring her home.
“It’s a miracle we got her back, but this just shouldn’t have happened,” Falslev said.
The child’s mother was arrested and transported to Utah, and the Cache County Attorney’s Office charged the woman with custodial interference, a third-degree felony — but the charges were later dismissed.
In the meantime, the child's mother has supervised visitation with the child.
Terryl Warner is a victims' advocate for the Cache County Attorney’s Office, and she explained to the Senate what happened.
“We found a loophole recently when we went to prosecute a woman who had taken her child for eight years. The woman had never been properly served under the Hague Convention — actually, we believe it was a proper service — but under the Hague Convention there are 49 parts of a proof of service,” Warner said.
The Hague Convention is an international agreement that preserves existing court orders regarding the custody of children under the age of 16 in order to discourage parents from taking a child to another country as part of a custody dispute.
“The child was rescued, the mother was arrested and the case was dismissed because prosecutors could not prove that she had been properly served with the custodial papers.
“So we will prosecute somebody for not returning a child overnight or withholding visitation, but we could not prosecute a woman who had run off for eight years,” Warner said.
House Bill 173 was an amendment to the existing custodial interference statute that attempted to correct that loophole in the law.
Passage of the bill will not affect the Falslevs, but it could make a difference for three other children in the state, including one other Cache Valley child.
Brenda Gomez Madrigal was reportedly abducted by her non-custodial father in 2004, when she was three years old. He possibly took the child to Mexico, but local authorities don’t even know if she is still alive at this point, Warner said.
While the bill passed easily through the House Law Enforcement and Criminal Justice Committee during this year’s legislative session, some members of the same Senate committee were not prepared to move the bill forward.
There was concern about how the proposed change in statute would affect law enforcement, with a belief that officers would be required to weigh in on a dispute and be the judge in the absence of a court order.
However, Logan Police Chief Gary Jensen said the bill would have little impact on how police handle disputes — something they already do every day.
Officers try not to become involved and will direct people to confer with their attorneys, but occasionally decisions have to be made with some immediacy.
“But we don’t make decisions with finality,” Jensen said. “That is for the courts to decide.”
Another concern about the bill is the ability to prove beyond a reasonable doubt that a parent was unable to exercise the civil remedies available to him or her.
Senators Lyle Hillyard and Todd Weiler were in favor of moving the bill out of committee.
“I would rather err on the side of safety for the poor (parent) who doesn’t have money, who doesn’t have resources and doesn’t know where (his/her) child is or if the child is safe or unsafe,” Hillyard said.
But, with two nays and three members absent, the bill failed in the Senate committee.
“I wish it would have passed but it gives us the opportunity to continue to try to improve it,” Baird said.
The amendment as it was written this year makes it a Class B misdemeanor if the child is not removed from the state and an A misdemeanor if there has been a prior offense. A child who is taken out of state (or out of the country) under this section of the statute could be charged with a third-degree felony.