When NCP ignores court orders completely

[Keith Randolph]

What is the name of your state (only U.S. law)? Colorado

Short version, mom left state with 2 yr old son. I filed immediately and court ordered joint custody, myself as primary residential parent. Mom is very aware of orders and simply has ignored them and started hiding out with family out of state and never has returned my son home like the orders direct her too. Shes allowed visitation just has to return him to me once her time is up. Shes been laying low for nearly 6 months and has severed all contact a couple months ago.

She claimed to be getting her life together and was going to have her own home and job for the first time in years but was only getting all these things through making herself out to be a domestic violence victim. The court in Wisconsin even denied her Petition for a PPO. There has never been any domestic violence between us. She just needed the 1 day ppo to show the state so she could get all these emergency relief programs and benefits.

Here she failed to show for enforcement trial, She was found in contempt, civil arrest warrant issued, and has pending felony charges for custodial interference.

My question is even if shes able to get a job and a home, when its time for custody modification next month, will that even matter since shes disregarded the courts orders completely since they were issued? I plan on filing for sole custody so she cant do this again and so I can get the full weight of law enforcement behind me to find him.

Shes refused all contact between my son and I, has changed phone numbers, shut off her email. Just walking around like the law doesn't apply to her and every once in awhile one of her family members post pics on facebook of my son at a family get together like their rubbing it in.

 

[Just Blue]

What is the name of your state (only U.S. law)? Colorado

Short version, mom left state with 2 yr old son. I filed immediately and court ordered joint custody, myself as primary residential parent. Mom is very aware of orders and simply has ignored them and started hiding out with family out of state and never has returned my son home like the orders direct her too. Shes allowed visitation just has to return him to me once her time is up. Shes been laying low for nearly 6 months and has severed all contact a couple months ago.

She claimed to be getting her life together and was going to have her own home and job for the first time in years but was only getting all these things through making herself out to be a domestic violence victim. The court in Wisconsin even denied her Petition for a PPO. There has never been any domestic violence between us. She just needed the 1 day ppo to show the state so she could get all these emergency relief programs and benefits.

Here she failed to show for enforcement trial, She was found in contempt, civil arrest warrant issued, and has pending felony charges for custodial interference.

My question is even if shes able to get a job and a home, when its time for custody modification next month, will that even matter since shes disregarded the courts orders completely since they were issued? I plan on filing for sole custody so she cant do this again and so I can get the full weight of law enforcement behind me to find him.

Shes refused all contact between my son and I, has changed phone numbers, shut off her email. Just walking around like the law doesn't apply to her and every once in awhile one of her family members post pics on facebook of my son at a family get together like their rubbing it in.

I would think that once she is caught by law enforcement, she will have only supervised visitation...Based on what you posted. It's late for much of the country so I am sure others will post in the a.m. ...please look in for their more knowledgeable answers.

Blue

 

[LdiJ]

I would think that once she is caught by law enforcement, she will have only supervised visitation...Based on what you posted. It's late for much of the country so I am sure others will post in the a.m. ...please look in for their more knowledgeable answers.

Blue

I would agree unless there were any issues with service or jurisdiction.

 

[Zigner]

Were you married?

 

[stealth2]

You would be wise to change your user name to something less identifying.

 

[Keith Randolph]

I would agree unless there were any issues with service or jurisdiction.

No issues there. I filed the day after she took off and had a process server serve the initial petition a week after she signed the green slip for the petition for temp orders. My sons mom has said to me before that she was just biding her time until she can appeal the decision when she'll have a free lawyer that you get to appeal your case. Ive done everything myself till now so I'm not sure I can hold my own for long in court against an attorney.

 

[Keith Randolph]

Were you married?

Never married. Both signed paternity acknowledgement at hospital before son was born.

 

[LdiJ]

No issues there. I filed the day after she took off and had a process server serve the initial petition a week after she signed the green slip for the petition for temp orders. My sons mom has said to me before that she was just biding her time until she can appeal the decision when she'll have a free lawyer that you get to appeal your case. Ive done everything myself till now so I'm not sure I can hold my own for long in court against an attorney.

How old is your son and how long did all of you live in Colorado? I am just trying to make sure that you do not have any jurisdictional issues.

 

[Ohiogal]

Never married. Both signed paternity acknowledgement at hospital before son was born.

You could not have signed it BEFORE the child was born.

 

[Keith Randolph]

We all lived here for years before her leaving. Son was born here. I filed the day after shee took off. She made an appearance in court. Orders were signed about 6 months ago. Its been almost a year since she left. He's almost 2 years old now

 

[Keith Randolph]

And we both signed the pat acknowldgement before son was born. At the hospital right before they induced her.

 

[Keith Randolph]

The problem I'm running into now is the charges against her are a class 6 felony so the county attorney won't extradite for that. If they won't extradite then law enforcement won't go actively looking for her. I was counting on law enforcement to help find her since I don't have the means to take a trip to go searching indefinitely. A couple family member are helping her lay low so I wouldn't get much from them on my own.

My only idea was to try and get the charges changed to kidnapping a class2. Don't know if its possible but the last time I heard from her she has demanded money and thati agree to her new custody plan if I wanted her to return my boy.

 

[SESmama]

Actually she is closer to a class 5


http://www.lexisnexis.com/hottopics/colorado/?app=00075&view=full&interface=1&docinfo=off&searchtype=get&search=C.R.S.+18-3-302

C.R.S. 18-3-304 (2014)

18-3-304. Violation of custody order or order relating to parental responsibilities

(1) Except as otherwise provided in subsection (2.5) of this section, any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child's parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony.

(2) Except as otherwise provided in subsection (2.5) of this section, any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child or parental responsibilities with respect to a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian or person with parental responsibilities of the custody or care of a child under the age of eighteen years, commits a class 5 felony.

(2.5) Any person who, in the course of committing the offenses described in subsections (1) and (2) of this section, removes a child under the age of eighteen years from this country commits a class 4 felony.

(3) It shall be an affirmative defense either that the offender reasonably believed that his conduct was necessary to preserve the child from danger to his welfare, or that the child, being at the time more than fourteen years old, was taken away at his own instigation without enticement and without purpose to commit a criminal offense with or against the child.

(4) Any criminal action charged pursuant to this section may be tried in either the county where the act is committed or in which the court issuing the orders granting custody or allocating parental responsibilities is located, if such court is within this state.

(5) Repealed.

HISTORY: Source: L. 71: R&RE, p. 422, � 1. C.R.S. 1963: � 40-3-304.L. 85: (4) amended, p. 618, � 11, effective July 1.L. 86: (5) added, p. 779, � 1, effective April 3.L. 98: (1) and (2) amended and (2.5) added, p. 1442, � 27, effective July 1; (1), (2), and (4) amended, p. 1403, � 56, effective February 1, 1999.



Editor's note: (1) Subsection (5)(c) provided for the repeal of subsection (5), effective December 2, 1986. (See L. 86, p. 779.)

(2) Amendments made to subsections (1) and (2) by House Bill 98-1160 and House Bill 98-1183 were harmonized, effective February 1, 1999.

Cross references: For affirmative defenses generally, see � � 18-1-407, 18-1-710, and 18-1-805.

ANNOTATION

Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Recovering the Parentally Kidnapped Child", see 12 Colo. Law. 1798 (1983).

Defendant failed to carry his burden of proving this section unconstitutional by being so vague and overbroad that it failed to give fair notice of the criminal activity proscribed and therefore denied due process. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977).

This section is not unconstitutionally overbroad because a statute preventing the taking of a child in violation of a court order regarding custody is a legitimate exercise of police power. People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Use of the word "custody" in subsection (2) is not unconstitutionally vague. People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Use of the words "an order . . . granting custody . . ." in subsection (2), is not limited or qualified by type and court will not read into statute an exception, limitation, or qualifier that its plain language does not suggest, warrant, or mandate; subsection (2) penalizes violations of temporary and permanent custody orders alike and the rule of lenity does not apply. People v. Sorrendino, 37 P.3d 501 (Colo. App. 2001).

Temporary "care and control" provisions of restraining orders issued pursuant to � � 14-4-102 and 14-10-108 qualify as an order granting custody within the meaning of subsection (2). People v. Sorrendino, 37 P.3d 501 (Colo. App. 2001).

A person awarded permanent custody becomes for all practical purposes "a parent". The legal custodian has a duty to care for a child, providing the basic necessities of life. The legal custodian has such rights to the exclusion of the natural parent. In addition, the general assembly has strengthened the position of a custodian through criminal sanctions for violation of a custody order. A natural parent may be charged criminally for violating a custody order if there is intent to deprive the custodian of custody of a child. U.S. v. Al-Ahmad, 996 F. Supp. 1055 (D. Colo. 1998) (decided prior to the 1998 amendment).

Violation of custody is a separate and distinct offense from second degree kidnapping. People v. Tippett, 733 P.2d 1183 (Colo. 1987); People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

Culpable mental state required by subsection (2) is the intent to deprive the lawful custodian of custody. No "knowing" mental state with respect to the custodial order itself is implied or needs be proven. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).

Jury instructions adequately encompassed defendant's theory of affirmative defense based on subsection (3). People v. Tippett, 733 P.2d 1183 (Colo. 1987).

Effect of habeas corpus on custody decree. Where the original custody award of a child and a subsequent habeas corpus proceeding are in the same state, but in different courts, although the habeas corpus court would not have jurisdiction to test the wisdom of or to modify the custody decree, it can and should make the writ permanent to enforce the decree and should order the child returned to the one lawfully entitled to custody. Wood v. District Court, 181 Colo. 95, 508 P.2d 134 (1973).

Evidence in support of affirmative defense to violation of custody may be limited to defendant's state of mind at or shortly before the time he took his daughter. People v. Mossmann, 17 P.3d 165 (Colo. App. 2000).

The determination of temporal limitations upon the admission of affirmative defense evidence is within the sound discretion of the trial court. People v. Beilke, 232 P.3d 146 (Colo. App. 2009).

Exclusion of evidence of defendant's state of mind led to the incorrect denial of defendant's request for an affirmative defense instruction. People v. Mossmann, 17 P.3d 165 (Colo. App. 2000).

Evidence held sufficient. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977).

Applied in People v. Coyle, 654 P.2d 815 (Colo. 1982).