Hi Beverly,

Thanks for responding. You make some good observations and give me
food for thought. I'll respond in-line to the points you make.

Beverly wrote in message . ..
A few things come to mind as I follow this thread.

1. There are many laws on the books in every state that are never
prosecuted. Some are antiquated (i.e. having to do with horse and
buggy days) and some have alternative methods that have come about in
later law for resolution. Yours sounds like the latter. Police
seldom move on things that can be handled without police intervention.


This may be true. I don't really know the history of PC 278.5.
However, I did find this article about it, written by an Officer at my
very own San Diego Police Department. Based on the article (a few
years old now) it does appear that law enforcement is supposed to act
on 278.5 violations. I actually contacted the author by email, and he
was initially excited that I'd read his article. After I followed up
with my case background and related questions, he clammed right up,
lol.

http://groups.google.com/groups?q=ch...iti.com&rnum=1


2. Even though you and your ex do not share a domicile, the case is
domestic. Many officers are loathe to get involved in domestic
disputes, and don't as a policy unless a life is in danger, as they
can be more hairy than other crimes.


And I'm loathe to ask them to get involved. But I'm pursuing the only
options that I see are left. You're definitely right...they don't
want to get involved, but I need them to, and I can't figure out the
best way to go about it.

3. Many crimes are not a crime which causes active investigation.
The police may have had what is called a "bench warrant" issued and,
basically, in order to be arrested, the criminal must be caught doing
something else. This can be as simple as a traffic stop, but
nonetheless is going to require another event for action. Just so you
know, this "other event" could be the criminal turning him/herself in,
so you may want to see if a bench warrant has been issued and, if so,
inform your ex that "they are looking for her." A semi-responsible
person with a child will turn themselves in if only to avoid the
necessity of bail/a night in jail so as they can make sure the state
never gets their child.


Excellent advice. I will keep this in mind and ask about it when I
call today to inquire about the status of the case.


4. Beware. Taking the child out of state temporarily, causing one
missed visitation, may likely be laughed out of court, criminally and
civilly. It depends on the third parties involved. You may build a
better case tape recording your ex telling you how frivolously she
discounts your child's need for you. Documenting missed vistations
carefully, to include the reason given. The civil courts may view an
arrest of an ex-spouse as a feeble-hearted attempt to change custody
without them (the civil court) and will be angered in the process.


I've got all the missed visitations documented. She rarely gives a
reason, she usually just doesn't show and is unreachable when I call
(this most recent incident was an exception in that she answered her
phone). And yes, again you are correct in your observation that the
DA's office and the police both seem extemely dismissive of "merely a
single missed visit". But this is a pattern, and it's hard to
articulate the cumulative damage caused by this pattern. I tried to
get them to focus on the incident at hand, but it was clear they
didn't want to hear about it. My wife told me afterward that I should
have asked the DA investigator, "ok, so next time I have custody,
you're telling me that I really don't have to return my daughter to
her mother--it's ok if I just keep her a few extra days. Is that what
you're saying?" Maybe I should have tried it, but I doubt sarcasm
would have made them more sympathetic.

I don't think I'm allowed to record conversations unless I notify her
that I'm recording. She's much too smart to say anything
incriminating on the record or leave evidence of a willfully denied
visit. She knows what she's doing. Crazy like a fox.

I'm not asking for a change of custody at this point. Just
enforcement of the custody arrangements we already have. I'll make
this clear in the contempt hearing. Your caution against angering the
courts is duly noted. I don't want to do that.

Jay R.


On Tue, 25 May 2004 03:29:26 GMT, JR wrote:

Hi Barry,

I've actually got the same "fixed schedule" order that you have (1-3-5
weekends). That's why I'm asking about criminal prosecution under Cal
PC 728.5. There's really no way our order can be mis-interpreted. The
date, time, place, of our custody transfers are clearly stated in the
order (it took a LONG time to get the order to that point). Despite
this, mom repeatedly thumbs her nose at me and the court to the
detriment of an innocent little girl (and me, her father).

Yes, I filed the OSC Contempt papers this morning and they should be
served on Mom by Tuesday or Wednesday. The arraignment is set for July
6th. But like I said, Civil Contempt was unsuccessful before, so I'm
looking for a way to convince law enforcement to, er, enforce the law!!

When I discovered Cal Penal Code 278.5 via the post I pasted below, I
thought, "THIS IS IT! THERE IS A LAW SHE IS BREAKING!" But now that
I've filed the report, I'm kind of stalled.

Trouble is I know that my police report was taken not because the police
intended to do a real investigation, but only to get me out of the
substation; to go away. I want to know how to get the police to follow
up, verify that the orders are valid, locate and question the criminal,
and arrest her upon verifying that statute 278.5 was violated.

I was hoping this "two-pronged" approach (civil contempt + criminal
case) might yield better results. I'm hopeful about the contempt, but I
want to keep the criminal side moving.

There was another guy in the substation reporting a stolen car while I
was trying to get my stolen child report filed. The officer seemed so
much more willing to take the stolen car report, I guess because he
understood the crime. But what if the guy who had his car stolen on
Friday found out that the thief had returned the car, slightly damaged,
on Monday? Wouldn't it still be a crime? My daughter will never get
this weekend with her dad back. The message sent to her by her mom,
that it's ok to ignore dad and take the law into your own hands, is
emotionally and psychologically damaging to her! Ok, enough of my
tortured kid=car metaphor, but a kid is more important than a car, yet I
can't get the police to act on this!

Anyway, thanks a lot for responding Barry. The initial lack of
responses was beginning to make me doubt myself. But I'm beginning to
see that I'm in uncharted territory here.

Jay R.

wrote:
In alt.child-support JR wrote:
: Hello,

: How do I prosecute my ex-girlfriend for Custodial Interference in
: California? I've taken some steps and have a criminal case number
: assigned, but what are the next steps I need to take to get her charged?
: I believe that if she left the state (and I believe she did), this is
: a felony.

I've been through this situation a lot.

The problem is the lack of clarity with the custody order regarding
when parenting time will occur. I told our custody mediator my problems
with Custodial Interference. He wrote the custody order using "fixed
schedule parenting time.". It's clearly stated that I'll have him on
the first, third, and fifth (if there is a fifth) weekend of the month
plus Thursday afternoons (between defined hours at a minimum) on even
weeks. This is better than "every other weekend" because one can always
look at a calendar and see if it's the first, third or fifth weekend
vs. quibbling over "what was an every other week". Additionally, the
order states that **any deviation of the schedule has to be mutually
agreed upon in writing***. Also, if the child is "ill", a doctor's note
is required to delay parenting time (she played that game also).

You need to pursue a contempt citation. However, the result would probably
be the same for you as last time (not clear as a result of swapping days,
etc.).

I would advise you to file a motion to revise your custody order. Make it
clear which days of the week you'll be with your child and what times.
Make it clear that any deviation HAS to be in writing and signed by both
of you or an email must be sent and a reply given by you defining the
change in parenting time. If you can afford it, get legal help from an
attorney to draft the Custody Order modification. Also, I'll note that
I've used the "dial a lawyer" attorneys available from www.nolo.com and
have been pleased with their service and the low cost.

Good luck. Get a clear custody order and stick to it. No deviations that
are outside of the order. If you do, that demonstrates you are "flexible"
and you can now see that your situation can be taken advantage of by
the ex.

barry