Will I Lose Custody if I’m Charged with a Sex Offense in Utah?

Every parent wants to spend as much time as possible with their children – that’s why you went through a custody battle in the first place.  However, if you’re charged with a sex crime, you could potentially lose your parental rights.  In this article, we’ll explain what happens when a divorced parent is accused of child abuse or sex offenses in Utah, and how being criminal charges could impact your custody arrangement.

What if a Divorced Parent is Charged with Child Abuse?

Title 30 of the Utah Code deals with legal matters relating to marriage and divorce.  Utah Code § 30-3-5.2, which took effect on May 13, 2014, makes specific provisions for situations where divorced or divorcing parents are investigated for the physical or sexual abuse of a child.  

This law gives Utah’s courts the authority to order an investigation (after making an inquiry) in cases where “an allegation of child abuse or child sexual abuse is made” against either party.  This applies regardless of whether divorce proceedings are currently underway, or a divorce decree has already been granted and one party is requesting modification.  

If an investigation is ordered, it will be conducted by the Department of Human Services (DHS), Division of Child and Family Services (DCFS).  Utah Code § 62A-4a-409 gives the DCFS the authority to “make a thorough preremoval investigation upon receiving either an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency,” provided that reasonable cause (such as a criminal charge) exists.  

However, it is also possible to challenge the findings of a DCFS investigation by requesting an administrative hearing.  This is your right under Utah Code § 62A-4a-1009(4)(a), which says that alleged offenders can “make a request to challenge a supported finding within 30 days of a notice being received.”  At your hearing, the burden of proof falls on the DCFS, which must produce a “preponderance of the evidence” supporting the allegations.

But what if a defendant is charged with a crime other than child abuse?

Court house

When Can You Be Investigated by the DCFS for Sex Crimes?

As noted above, Utah’s family courts can order an investigation by the DCFS if allegations of physical or sexual child abuse are made.  Sexual abuse of a child and aggravated sexual abuse of a child are specific offenses under Utah Code § 76-5-404.1.  

However, DCFS investigations aren’t actually limited to just those two crimes.  Sexual abuse also has a wider definition under Utah Code § 78A-6-105(39), which means that all of the following acts and offenses can potentially lead to a DCFS investigation:

  • Any “an act or attempted act of sexual intercourse, sodomy, incest, or molestation directed towards a child,” which would include the following crimes:
    • Forcible Sexual Abuse
    • Object Rape of a Child
    • Rape of a Child
    • Sodomy on a Child
  • Any of the following crimes:
    • Child Bigamy
    • Incest
    • Lewdness
    • Lewdness Involving a Child
    • Sexual Battery
    • Voyeurism

Criminal allegations related to the possession or distribution of child pornography will also lead to an investigation.  

Ultimately, defendants must remember that the courts always strive to accomplish one goal above all others when making child custody arrangements: protecting the best interests of the child.  That means placing the child in the environment most likely to foster stability, good health, education, and social development, as well as protecting the child from being physically, emotionally, or sexually harmed.  

While it is not necessarily impossible to obtain custody with a distant, non-violent offense (such as a shoplifting arrest from six years ago), offenses which are violent, involve drugs, or are sexual in nature are major strikes against parents seeking to keep or obtain custody of their children – especially when the offense is recent (or currently under investigation).  Moreover, drug crimes involving children can lead to additional criminal charges related to child endangerment under Utah Code § 76-5-112.5.

If you’ve been arrested for sex crimes in Salt Lake City or elsewhere in Utah, you need experienced legal representation protecting your rights and fighting the charges.  Utah enforces some of the toughest sex crime penalties in the nation, and beyond the devastating prison sentence, you could also be forced to register as a sex offender.  Depending on the crime, you could even be required to register for the rest of your life.

Darwin has more than 16 years of experience handling a broad array of misdemeanor and felony charges, and is prepared to make emergency jail visits if necessary.  For advice about child custody, child support, or other legal matters related to divorce, call Salt Lake City criminal defense lawyer Darwin Overson today for a free consultation.