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#31
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
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 |
#32
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
Not many will see it that way, if any. If they do, too bad! The legal remedies are there for a reason. Right, that's my thinking. What's bizarre is that these laws are on the books, you'd think for a reason, but it's proving nearly impossible to get them enforced or violations of them investigated. Yes, she's wrong in what she's doing - however, you need to make sure you don't put yourself in the position of being 'more' wrong - it won't help your case. How does availing yourself of the only legal remedies available make one not just wrong, but "MORE WRONG?" Agreed, it shouldn't. But Beverly offers a practical view. As my attorney has pointed out to me, family court is a big PR contest. It helps to be "right", but you need to present your case in such a way that the judge wants you to be right. |
#33
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
Not many will see it that way, if any. If they do, too bad! The legal remedies are there for a reason. Right, that's my thinking. What's bizarre is that these laws are on the books, you'd think for a reason, but it's proving nearly impossible to get them enforced or violations of them investigated. Yes, she's wrong in what she's doing - however, you need to make sure you don't put yourself in the position of being 'more' wrong - it won't help your case. How does availing yourself of the only legal remedies available make one not just wrong, but "MORE WRONG?" Agreed, it shouldn't. But Beverly offers a practical view. As my attorney has pointed out to me, family court is a big PR contest. It helps to be "right", but you need to present your case in such a way that the judge wants you to be right. |
#34
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
Not many will see it that way, if any. If they do, too bad! The legal remedies are there for a reason. Right, that's my thinking. What's bizarre is that these laws are on the books, you'd think for a reason, but it's proving nearly impossible to get them enforced or violations of them investigated. Yes, she's wrong in what she's doing - however, you need to make sure you don't put yourself in the position of being 'more' wrong - it won't help your case. How does availing yourself of the only legal remedies available make one not just wrong, but "MORE WRONG?" Agreed, it shouldn't. But Beverly offers a practical view. As my attorney has pointed out to me, family court is a big PR contest. It helps to be "right", but you need to present your case in such a way that the judge wants you to be right. |
#35
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Just keep in mind that some courts may view your approach as "prosecutorial
harrassment" - in that you're attempting to prosecute her twice for the same offense. Well, she violated both the criminal code and the civil code. It's a single incident that breaks multiple laws. |
#36
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Just keep in mind that some courts may view your approach as "prosecutorial
harrassment" - in that you're attempting to prosecute her twice for the same offense. Well, she violated both the criminal code and the civil code. It's a single incident that breaks multiple laws. |
#37
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Just keep in mind that some courts may view your approach as "prosecutorial
harrassment" - in that you're attempting to prosecute her twice for the same offense. Well, she violated both the criminal code and the civil code. It's a single incident that breaks multiple laws. |
#38
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
3. I believe the intent of 278.5 PC was to prosecute "Parental Child
Abduction". It was not intended to deal with a parent that plays the "Johnny does not feel well enough to go with you today!" crap. It was/is for the parent the takes the child (usually out of county/state/country and permentantly tries to keep the child away. Right, that's probably what they had in mind when they drafted 278.5. But the wording of the statute doesn't say anything about intended destination of the abductor, nor of the length of time of the abduction. I mean, when does the abduction become "permanent?" If 278.5 was intended for out-of-state, "permanent" abductions only, does that mean that there are no statutes to protect the poor guy who gets his custody rights regularly interfered with, but only for short periods and within the local jurisdicition? That seems to be the prevailing thinking on this: "oh, it's just a weekend, it's not 'serious'." But it is serious...weekends are all I have with my kid! |
#39
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
3. I believe the intent of 278.5 PC was to prosecute "Parental Child
Abduction". It was not intended to deal with a parent that plays the "Johnny does not feel well enough to go with you today!" crap. It was/is for the parent the takes the child (usually out of county/state/country and permentantly tries to keep the child away. Right, that's probably what they had in mind when they drafted 278.5. But the wording of the statute doesn't say anything about intended destination of the abductor, nor of the length of time of the abduction. I mean, when does the abduction become "permanent?" If 278.5 was intended for out-of-state, "permanent" abductions only, does that mean that there are no statutes to protect the poor guy who gets his custody rights regularly interfered with, but only for short periods and within the local jurisdicition? That seems to be the prevailing thinking on this: "oh, it's just a weekend, it's not 'serious'." But it is serious...weekends are all I have with my kid! |
#40
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
3. I believe the intent of 278.5 PC was to prosecute "Parental Child
Abduction". It was not intended to deal with a parent that plays the "Johnny does not feel well enough to go with you today!" crap. It was/is for the parent the takes the child (usually out of county/state/country and permentantly tries to keep the child away. Right, that's probably what they had in mind when they drafted 278.5. But the wording of the statute doesn't say anything about intended destination of the abductor, nor of the length of time of the abduction. I mean, when does the abduction become "permanent?" If 278.5 was intended for out-of-state, "permanent" abductions only, does that mean that there are no statutes to protect the poor guy who gets his custody rights regularly interfered with, but only for short periods and within the local jurisdicition? That seems to be the prevailing thinking on this: "oh, it's just a weekend, it's not 'serious'." But it is serious...weekends are all I have with my kid! |
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