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#41
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
I am always willing to stand corrected... better yet if the correcting
party is right. I'm not so certain you are right, however. Further discussion in line: On Tue, 25 May 2004 12:54:23 -0400, "P.Fritz" wrote: "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. 2. Even though you and your ex do not share a domicile, the case is domestic. Not if she violated a criminal law. I believe that things such as "domestic violence" is a situation in which a criminal law is violated; yet, it is still domestic. I don't believe the two are mutually exclusive. 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. Officers may be loathe to do a lot of things, but are required to process a criminal complaint. "Process" means what, exactly? Sounds like the officer "processed" the paperwork even if he didn't want to. Once the paperwork was done, I'll even bet it was "processed" again... perhaps into a bench warrant... maybe into the "circular file." To what extent do you believe all reported crimes are processed? 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. Typical for civil actions, not criminal I don't think civil actions have any kind of warrant at all. There is a bench warrant in my city for someone whom threated my life once. I suppose it wouldn't have been a bench warrant if he actually tried (sure hope not). Fact is... I understood why the police would do only that. A threat, while illegal, was not enough to extradite and the man fled the state. Doesn't matter to me. I only wanted it on record in case something happened to me. 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. See above. 4. Beware. Taking the child out of state temporarily, causing one missed visitation, may likely be laughed out of court, criminally and civilly. At least in Mich, moving a child across state lines and violating a custody/visitation order is a FELONY, punishable by over one year in jail. Felonies are NOT laughed out of court. I never said a felony would be laughed out of court. I don't recall if the California statute was a felony. And the mother did not MOVE a child across state lines in the sense the courts may mean it. 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. You obviously are not an attorney because the advise you give is so **** poor. I never said I was an attorney. You are welcome to your opinion. 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 |
#42
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
I am always willing to stand corrected... better yet if the correcting
party is right. I'm not so certain you are right, however. Further discussion in line: On Tue, 25 May 2004 12:54:23 -0400, "P.Fritz" wrote: "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. 2. Even though you and your ex do not share a domicile, the case is domestic. Not if she violated a criminal law. I believe that things such as "domestic violence" is a situation in which a criminal law is violated; yet, it is still domestic. I don't believe the two are mutually exclusive. 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. Officers may be loathe to do a lot of things, but are required to process a criminal complaint. "Process" means what, exactly? Sounds like the officer "processed" the paperwork even if he didn't want to. Once the paperwork was done, I'll even bet it was "processed" again... perhaps into a bench warrant... maybe into the "circular file." To what extent do you believe all reported crimes are processed? 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. Typical for civil actions, not criminal I don't think civil actions have any kind of warrant at all. There is a bench warrant in my city for someone whom threated my life once. I suppose it wouldn't have been a bench warrant if he actually tried (sure hope not). Fact is... I understood why the police would do only that. A threat, while illegal, was not enough to extradite and the man fled the state. Doesn't matter to me. I only wanted it on record in case something happened to me. 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. See above. 4. Beware. Taking the child out of state temporarily, causing one missed visitation, may likely be laughed out of court, criminally and civilly. At least in Mich, moving a child across state lines and violating a custody/visitation order is a FELONY, punishable by over one year in jail. Felonies are NOT laughed out of court. I never said a felony would be laughed out of court. I don't recall if the California statute was a felony. And the mother did not MOVE a child across state lines in the sense the courts may mean it. 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. You obviously are not an attorney because the advise you give is so **** poor. I never said I was an attorney. You are welcome to your opinion. 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 |
#43
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
I am always willing to stand corrected... better yet if the correcting
party is right. I'm not so certain you are right, however. Further discussion in line: On Tue, 25 May 2004 12:54:23 -0400, "P.Fritz" wrote: "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. 2. Even though you and your ex do not share a domicile, the case is domestic. Not if she violated a criminal law. I believe that things such as "domestic violence" is a situation in which a criminal law is violated; yet, it is still domestic. I don't believe the two are mutually exclusive. 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. Officers may be loathe to do a lot of things, but are required to process a criminal complaint. "Process" means what, exactly? Sounds like the officer "processed" the paperwork even if he didn't want to. Once the paperwork was done, I'll even bet it was "processed" again... perhaps into a bench warrant... maybe into the "circular file." To what extent do you believe all reported crimes are processed? 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. Typical for civil actions, not criminal I don't think civil actions have any kind of warrant at all. There is a bench warrant in my city for someone whom threated my life once. I suppose it wouldn't have been a bench warrant if he actually tried (sure hope not). Fact is... I understood why the police would do only that. A threat, while illegal, was not enough to extradite and the man fled the state. Doesn't matter to me. I only wanted it on record in case something happened to me. 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. See above. 4. Beware. Taking the child out of state temporarily, causing one missed visitation, may likely be laughed out of court, criminally and civilly. At least in Mich, moving a child across state lines and violating a custody/visitation order is a FELONY, punishable by over one year in jail. Felonies are NOT laughed out of court. I never said a felony would be laughed out of court. I don't recall if the California statute was a felony. And the mother did not MOVE a child across state lines in the sense the courts may mean it. 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. You obviously are not an attorney because the advise you give is so **** poor. I never said I was an attorney. You are welcome to your opinion. 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 |
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
Responses in-line:
On 25 May 2004 13:19:21 -0700, (JayR) wrote: 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. I know. You are between a rock and a hard place. I can't help but believe, however, that your trying all legal methods available to you DOES hold a benefit even if it is not the one you currently desire. Don't let the system beat you even if it feels like you can't beat 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. You'd have definitely put them on the adversary had you said that. I'm glad you didn't. I have learned that the best way to handle many things is to try to be factual and leave emotions at the door. Hard to do, I know. If you can't get the police to act on your complaint at all, you may wish to consider writing a well-worded letter to the Mayor. Keep it factual. "This is law xyz." "So and so violated XYZ by doing this." "I filed a report on this date." "The police have done this." "May I request your assistance in getting the police to do THIS." I don't think I'm allowed to record conversations unless I notify her that I'm recording. That was something I once believed by watching too much TV. Fact is, the laws of evidence vary by state. In MY state, for instance, only one party needs to know they are being recorded. Hence, I can record any concersation I desire and admit it as evidence. My neighbor cannot record a conversation I have with my other neighbor and use it as evidence. 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. I do wish you all the luck in the world. You sound reasonable. I hope the courts can see this in you. 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 |
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
Responses in-line:
On 25 May 2004 13:19:21 -0700, (JayR) wrote: 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. I know. You are between a rock and a hard place. I can't help but believe, however, that your trying all legal methods available to you DOES hold a benefit even if it is not the one you currently desire. Don't let the system beat you even if it feels like you can't beat 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. You'd have definitely put them on the adversary had you said that. I'm glad you didn't. I have learned that the best way to handle many things is to try to be factual and leave emotions at the door. Hard to do, I know. If you can't get the police to act on your complaint at all, you may wish to consider writing a well-worded letter to the Mayor. Keep it factual. "This is law xyz." "So and so violated XYZ by doing this." "I filed a report on this date." "The police have done this." "May I request your assistance in getting the police to do THIS." I don't think I'm allowed to record conversations unless I notify her that I'm recording. That was something I once believed by watching too much TV. Fact is, the laws of evidence vary by state. In MY state, for instance, only one party needs to know they are being recorded. Hence, I can record any concersation I desire and admit it as evidence. My neighbor cannot record a conversation I have with my other neighbor and use it as evidence. 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. I do wish you all the luck in the world. You sound reasonable. I hope the courts can see this in you. 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 |
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Beverly wrote:
You'd have definitely put them on the adversary had you said that. I'm glad you didn't. I have learned that the best way to handle many things is to try to be factual and leave emotions at the door. Hard to do, I know. If you can't get the police to act on your complaint at all, you may wish to consider writing a well-worded letter to the Mayor. Keep it factual. "This is law xyz." "So and so violated XYZ by doing this." "I filed a report on this date." "The police have done this." "May I request your assistance in getting the police to do THIS." Getting emotional when I need to be calm and cool is the single most difficult challenge I face. I'm incapable of not getting emotional, eventually, when talking about my daughter and the unfairness of this system that makes it so hard to make things right for her. Letter to the mayor...yes! I will do this next. I don't think I'm allowed to record conversations unless I notify her that I'm recording. That was something I once believed by watching too much TV. Fact is, the laws of evidence vary by state. In MY state, for instance, only one party needs to know they are being recorded. Hence, I can record any concersation I desire and admit it as evidence. My neighbor cannot record a conversation I have with my other neighbor and use it as evidence. I've actually already looked into this for California. The other party must be made aware that the conversation is being recorded. However, what most people don't know is that you don't have to verbally announce it. If you simply introduce a periodic "beep-tone" into the communication, that is sufficient, provided the beep tone meets certain decibel and frequency (every 15 seconds or less) criteria. I have a unit from Radio Shack that does this automatically, but it's not possible to connect my Radio Shack recorder to the pay phone I use to call her when she interferes with my custody at my daughter's school. I do wish you all the luck in the world. You sound reasonable. I hope the courts can see this in you. Thanks, I appreciate your suggestions. I will post the outcome of my efforts here so other's may benefit from anything I learn along the way. |
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Beverly wrote:
You'd have definitely put them on the adversary had you said that. I'm glad you didn't. I have learned that the best way to handle many things is to try to be factual and leave emotions at the door. Hard to do, I know. If you can't get the police to act on your complaint at all, you may wish to consider writing a well-worded letter to the Mayor. Keep it factual. "This is law xyz." "So and so violated XYZ by doing this." "I filed a report on this date." "The police have done this." "May I request your assistance in getting the police to do THIS." Getting emotional when I need to be calm and cool is the single most difficult challenge I face. I'm incapable of not getting emotional, eventually, when talking about my daughter and the unfairness of this system that makes it so hard to make things right for her. Letter to the mayor...yes! I will do this next. I don't think I'm allowed to record conversations unless I notify her that I'm recording. That was something I once believed by watching too much TV. Fact is, the laws of evidence vary by state. In MY state, for instance, only one party needs to know they are being recorded. Hence, I can record any concersation I desire and admit it as evidence. My neighbor cannot record a conversation I have with my other neighbor and use it as evidence. I've actually already looked into this for California. The other party must be made aware that the conversation is being recorded. However, what most people don't know is that you don't have to verbally announce it. If you simply introduce a periodic "beep-tone" into the communication, that is sufficient, provided the beep tone meets certain decibel and frequency (every 15 seconds or less) criteria. I have a unit from Radio Shack that does this automatically, but it's not possible to connect my Radio Shack recorder to the pay phone I use to call her when she interferes with my custody at my daughter's school. I do wish you all the luck in the world. You sound reasonable. I hope the courts can see this in you. Thanks, I appreciate your suggestions. I will post the outcome of my efforts here so other's may benefit from anything I learn along the way. |
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How can I prosecute Child Stealing / Custodial Interference (CALPC 278.5)
Beverly wrote:
You'd have definitely put them on the adversary had you said that. I'm glad you didn't. I have learned that the best way to handle many things is to try to be factual and leave emotions at the door. Hard to do, I know. If you can't get the police to act on your complaint at all, you may wish to consider writing a well-worded letter to the Mayor. Keep it factual. "This is law xyz." "So and so violated XYZ by doing this." "I filed a report on this date." "The police have done this." "May I request your assistance in getting the police to do THIS." Getting emotional when I need to be calm and cool is the single most difficult challenge I face. I'm incapable of not getting emotional, eventually, when talking about my daughter and the unfairness of this system that makes it so hard to make things right for her. Letter to the mayor...yes! I will do this next. I don't think I'm allowed to record conversations unless I notify her that I'm recording. That was something I once believed by watching too much TV. Fact is, the laws of evidence vary by state. In MY state, for instance, only one party needs to know they are being recorded. Hence, I can record any concersation I desire and admit it as evidence. My neighbor cannot record a conversation I have with my other neighbor and use it as evidence. I've actually already looked into this for California. The other party must be made aware that the conversation is being recorded. However, what most people don't know is that you don't have to verbally announce it. If you simply introduce a periodic "beep-tone" into the communication, that is sufficient, provided the beep tone meets certain decibel and frequency (every 15 seconds or less) criteria. I have a unit from Radio Shack that does this automatically, but it's not possible to connect my Radio Shack recorder to the pay phone I use to call her when she interferes with my custody at my daughter's school. I do wish you all the luck in the world. You sound reasonable. I hope the courts can see this in you. Thanks, I appreciate your suggestions. I will post the outcome of my efforts here so other's may benefit from anything I learn along the way. |
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How can I prosecute Child Stealing / Custodial Interference (CAL PC 278.5)
"Beverly" wrote in message ... I am always willing to stand corrected... better yet if the correcting party is right. I'm not so certain you are right, however. Further discussion in line: snip 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. Typical for civil actions, not criminal I don't think civil actions have any kind of warrant at all. There is a bench warrant in my city for someone whom threated my life once. I suppose it wouldn't have been a bench warrant if he actually tried (sure hope not). Fact is... I understood why the police would do only that. A threat, while illegal, was not enough to extradite and the man fled the state. Doesn't matter to me. I only wanted it on record in case something happened to me. -------------------------- Maybe it was best for him to 'have it on record'. It's hard for the police to be aware of every law on the books. Sometimes you have to be prepared to quote and/or show them the law in order to get them to act. For example, some years ago the newspaper sent reporters out to various police stations and asked for their daily arrest records,(or something like that), which any person has the right to see, a few handed them over no questions asked. But most, because they had never been asked before had no idea that they were required by law to show them. The rest finally allowed the reporter to view them but only after they contacted a lawyer to learn that they had to. ------------------------------- 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. See above. 4. Beware. Taking the child out of state temporarily, causing one missed visitation, may likely be laughed out of court, criminally and civilly. -------------------------- And this is a sad comment on how women get away with too much. A woman who, without good reason, causes a missed visitation should be required to answer for it. A woman who has a pattern of denying visitation should lose custody of the kids because it's obvious she has no regard for the courts, or the best interest of the kids. ~AZ~ At least in Mich, moving a child across state lines and violating a custody/visitation order is a FELONY, punishable by over one year in jail. Felonies are NOT laughed out of court. I never said a felony would be laughed out of court. I don't recall if the California statute was a felony. And the mother did not MOVE a child across state lines in the sense the courts may mean it. 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. You obviously are not an attorney because the advise you give is so **** poor. I never said I was an attorney. You are welcome to your opinion. 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 |
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