Questions and Arguments
For
Your Lawyer to Address
Felony Deprivation of
Parental Rights
One of the main
problems non-custodial parents face is denial of court ordered visitation.
Depriving another parent of court ordered visitation is considered “deprivation
of parental rights,” and it is a chargeable as a felony offense. It is against
the law for the other parent to deny you your time with the children, as
ordered by the court. This is clear under statute and is included in Appendix
A, which is attached to all family court orders.
Many
non-custodial parents have had repeatedly experienced deprivation of parental
rights and parental alienation that gets in the way of the parent-child
relationship. Most non-custodial parents feel they have no power to do anything
about it because few judges will enforce visitation.
If your ex has
prevented you from seeing your children, or threatened to do so, take
precautions at every visit. Always take someone else with you as a witness so
that you are never alone. Otherwise you run the risk of being falsely accused
of any sort of abuse. When you go to pick up your children for your court
ordered parenting time, always take a photocopy of your court order with you.
If you pick up
the children and the custodial parent won’t let the kids go with you. Stay
there and call the police. Show the police the court order. The police are
responsible for followin
1) Key words from the
·
Intentionally … you have to
have some evidence other than your word or your perception. Evidence would
include voicemails, things the other parent has said,
·
Substantially deprive … it will be
more likely to be taken seriously if it has to be a repeated offense …
·
In violation
of the court order … you can’t charge on deprivation of anytime
other than what you have been court ordered to have .. if you have had a
flexible arrangement and suddenly you ex changes that. You can’t charge out on
any verbal agreements or new permissive patterns that are stopped by the other
parent. The only thing you have a right to is your court ordered time.
Subdivision 1. Prohibited acts. Whoever intentionally does any of the
following acts may be charged with a felony and, upon conviction, may be
sentenced as provided in subdivision 6:
(1) conceals a minor child from the child's
parent where the action manifests an intent
substantially to deprive that parent of parental rights or conceals
a minor child from another person having the right to parenting time or custody
where the action manifests an intent to substantially deprive that person of rights
to parenting time or custody;
(2) takes, obtains, retains, or fails
to return a minor child in violation of a court order which has
transferred legal custody under chapter 260, 260B, or 260C to the commissioner
of human services, a child-placing agency, or the local social services agency;
(3) takes, obtains, retains, or fails
to return a minor child from or
to the parent in violation of a court order, where the action manifests an intent substantially
to deprive that parent of rights to parenting time or custody;
(4) takes, obtains, retains, or fails to
return a minor child from or to a parent after commencement of an action
relating to child parenting time or custody but prior to the issuance of an order determining custody or
parenting time rights, where the action manifests an intent substantially to
deprive that parent of parental rights;
(5) retains a child in this state with the
knowledge that the child was removed from another state in violation of any of
the above provisions;
(6) refuses to return a minor
child to a parent or lawful custodian and is at least 18 years old and more
than 24 months older than the child;
(7) causes or contributes to a child being a
habitual truant as defined in section 260C.007,
subdivision 19, and is at least 18 years
old and more than 24 months older than the child;
(8) causes or contributes to
a child being a runaway as defined in section 260C.007,
subdivision 28, and is at least 18 years
old and more than 24 months older than the child; or
(9) is at least 18 years old
and resides with a minor under the age of 16 without the consent of the minor's
parent or lawful custodian.
2) What you need to know or
prepare in advance:
·
You need evidence that you as a parent tried, and
tried, and tried again. It can never be said that you gave up.
o
Sent letters requesting your time
o
Have a third party mail the letters and complete an
affidavit of service by mail
·
You need to bring
a witness with you when you file the complaint with the
police/sheriff
·
You need a witness with you when you attempt to pick
up the children
·
You need evidence:
o
taped voicemails, transcribed
voicemails (best to have the tapes and transcripts authorized as a “true
and correct” copy by a certified transcriber.) Turn in a copy with your
complaint
o
exact quotes from the other parent showing
intent, with specific days those things were said.
o
Bring written notarized affidavits by your
witnesses
o
Police reports from times you
have gone to get the children and not been allowed them
o
If your ex has any girlfriends/boyfriends/roommates in their home, run a police report on them to
make sure that your children are not in danger
o
Deprivation of parental rights is emotional
endangerment to the child – if you have any expert information regarding
that, bring it with you
o
You need to take a witness (and preferably
the police) with you on your visitation drop-offs/pick-ups to ensure there is a
police report for each time you were deprived
·
Your Affidavit: You need to prepare a
written document detailing all information. Before you make the
complaint, type up every offense in chronological order, with as much detail as
possible – to save the officer time. Otherwise, the officer has to write
everything down and you run the risk of mistakes or missing information.
Anytime you can make someone else’s job easier, the more they will look
favorably upon you. Additionally, with the pressure of sitting in the sheriff’s
office and the pressure of having to make a statement, it is too easy to
inadvertently forget something. You are taking it this far, you want to make
sure you are 100% accurate.
·
You need to bring a copy of
·
You need to bring one, preferably two people with
you, to show the officer that you have support in this effort. If you can,
make sure that one person is a firsthand witness to some of the deprivation.
3) Process for Filing a
Complaint:
ü
After you have prepared everything in advance: documentation, evidence,
you are ready to begin the process of filing a complaint.
ü
Drive to the city police or county sheriff to file the complaint in person.
ü
What office? File the
complaint with the police department where the where the violation occurred. If
the police aren’t helpful, call the county sheriff.
o
The violation occurred where the drop-off/pick up
was supposed to occur
o
It is likely you normally pick up the children at
the custodial parents home.
o
If there is clarification on drop-off/pick up in the
court order, only the instructions for location in the court order will prevail
ü
If your court order is in the same county where the
parent lives, it is OK to file the complaint with the sheriff’s office (instead
of the police) in that county
ü
Bring an extra
copy of all documentation and evidence with you.
o
If you can’t afford to make the necessary copies,
the officer will likely make copies for you. However, providing copies will: a)
impress upon them that you are prepared, and 2) make their job easier.
ü
What to expect when you get there:
o
You walk in and say you want to file a criminal
complaint
o
Your temperament and communication style must be
slow, deliberate, calm, cool, collected, factual, with an organized and
chronological thought process. Any signs of anger or upset and they will likely
discount you as not credible.
o
You give officer all your documentation and evidence
(be sure you give him a photocopy and none of the originals, you must keep a
set of originals for yourself)
o
You tell the officer everything that has happened,
starting with more current violation, then start with first documented
violation and work your way up to present deprivation
o
After the officer understands everything and he gets
all the information, he/she will ask you to give them a statement that will be
taped. The officer will walk you through the information you just told them,
and ask you to repeat in the recorder. Stick to the facts. Don’t get
side-tracked with irrelevant details. If the charge is made by the city/county
attorney, you will have plenty of opportunity to fill in any gaps or extraneous
details.
ü
After – get a copy
of that police report
o
You will not be able to get the police report that
very minute. After you leave the officer spends much time getting the report
finalized and written. Then the following business day, their transcribers will
transcribe your taped statement for the attorney. This takes time
ü
Expect confirmation
from the county/city attorney within one week to hear whether they will make a
determination whether or not they will charge
o
The county/city attorney has the discretion to
determine if the county/city attorneys office believes they have enough time,
money, evidence, or political courage, to charge the case as a crime.
ü
If you haven’t heard anything follow-up with the Victim’s Rights
Coordinator for that county/city attorney office.
4) Other civil court remedies:
In
addition to the FELONY complaint for deprivation of parental rights, you may
also want to take further action. You have a right to take the custodial parent
to court to see resolution.
Fill
out all pro se forms for the following (all forms available on the internet:
·
Contempt of court
o
PRO SE FORM: go to www.courts.state.mn.us and then click
“for court users,” then find “court forms section” then select forms
category: “dissolution/divorce” – scroll
down for all related forms.
§
Exact link: http://www.courts.state.mn.us/ctforms/dissolution/contempt/Instructions_for_Contempt.doc
o
You ask the charge to charge the other parent with violating a court order and request
sanctions
·
Parenting time issues
o
PRO SE FORM: go to www.courts.state.mn.us and then click
“for court users,” then find “court forms section” then select forms category: “child custody and parenting” – scroll down
for all related forms.
o
Be sure to understand all available forms and
process
o
You ask the court to help ensure it doesn’t happen
again
·
Change of custody
o
PRO SE FORM: go to www.courts.state.mn.us and then click
“for court users,” then find “court forms section” then select forms
category: “child custody and parenting”
– scroll down for all related forms.
o
Deprivation of parental rights is grounds for
reversal of custody.
·
Child Support Modification
o
FORM: go to www.courts.state.mn.us
and then click “for court users,” then find “court forms section” then select
forms category: “child support” – scroll
down for all related forms.
o
If there is a change in custody, there ought to be a
change in child support as well. But that should follow the decision.
Call
for a court administration in the county where your original family court order
was filed and ask for a court date.
Once
you have the court date, send all paperwork to the other party.
It
is recommended that you have an attorney with you, but if you can’t afford an
attorney, you can attempt these actions pro se if you are extremely prepared
and know how to argue the law (statues and case law). Most pro se litigants
lose because they don’t follow procedure. The procedures are detailed in most
of the instruction sections for each form – reach them carefully.
Notify
CPR of your court date and we will attempt to get volunteers to attend and
observe, to support you.
Key
Phrases to use that have impact and get attention”
If
you are turned down and the county attorney will not prosecute,
A)
get the name of the charging attorney assigned to
the case
B)
be sure to ask them specifically WHY they are not
sharing
C)
be sure to ask them for a letter in writing
explaining that reason
D)
if they call to tell you this, be sure to try get it
on tape
E)
turn a copy of the tape into CPR – we would like to
use it for possible audio on a video or cable TV program
Child
support arrears not reason…
Move
ways … intent to deprive..
Related Deprivation statutes:
Print
all related statues off the internet. (http://www.revisor.leg.state.mn.us/stats/)
It
is important that you are aware of all your rights and aware of the law as it
applies to your case.
ü
ü
Minn. Statute 626.556 Reporting of maltreatment
of minors
ü
ü
ü
ü
Minn. Statute 518.18 (c) Modification of order.
Related Case Law:
(contact
CPR for details)
·
Rubino v. Morgan, 638
N.Y.S.2d 524, 224 A.D.2d 903 (3rd Dept. 1996) held that
child support paying parent is entitled to relief from support obligation if
child abandons relationship with that parent and refuses to have anything to do
with the paying parent, either on her own accord or through mother's excessive
visitation interference, or parental alienation. The child's right
to support and parent's right to custody and services are reciprocal.
(Note: If parent has no right to custody or visitation [which is a
limited form of custody] not based on his or her own malfeasance, misconduct or
neglect, logic holds that there cannot be responsibilities without rights.
These cases also fall under the Full Faith and Credit Clause of Article IV,
Section 1 of the U.S. Constitution, since child support and its enforcement is
governed and regulated by Federal child support laws.
Subdivision 1. Prohibited acts. Whoever intentionally does any of the
following acts may be charged with a felony and, upon conviction, may be
sentenced as provided in subdivision 6:
(1) conceals a minor child from the child's
parent where the action manifests an intent
substantially to deprive that parent of parental rights or conceals
a minor child from another person having the right to parenting time or custody
where the action manifests an intent to substantially deprive that person of rights
to parenting time or custody;
(2) takes, obtains, retains, or fails
to return a minor child in violation of a court order which has
transferred legal custody under chapter 260, 260B, or 260C to the commissioner
of human services, a child-placing agency, or the local social services agency;
(3) takes, obtains, retains, or fails
to return a minor child from or
to the parent in violation of a court order, where the action manifests an intent substantially
to deprive that parent of rights to parenting time or custody;
(4) takes, obtains, retains, or fails to
return a minor child from or to a parent after commencement of an action
relating to child parenting time or custody but prior to the issuance of an order determining custody or
parenting time rights, where the action manifests an intent substantially to
deprive that parent of parental rights;
(5) retains a child in this state with the
knowledge that the child was removed from another state in violation of any of
the above provisions;
(6) refuses to return a minor
child to a parent or lawful custodian and is at least 18 years old and more
than 24 months older than the child;
(7) causes or contributes to a child being a
habitual truant as defined in section 260C.007,
subdivision 19, and is at least 18 years
old and more than 24 months older than the child;
(8) causes or contributes to
a child being a runaway as defined in section 260C.007,
subdivision 28, and is at least 18 years
old and more than 24 months older than the child; or
(9) is at least 18 years old
and resides with a minor under the age of 16 without the consent of the minor's
parent or lawful custodian.
“Having canceled the bond which stood against
us with its legal demands; this He set aside, nailing it to the cross.”
Colossians 2:14
CPR Vision
Statement: An inter-denominational, faith-based,
bi-partisan, gender-neutral, tax-exempt public policy and educational
organization to protect the civil rights of both parents to protect the
children.
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The purpose of this information is to help ensure that you are asking your lawyer all the pertinent and relevant questions that must be addressed in your motion, affidavit, and memorandum of law, in order to help ensure a thorough argument based on all facets of the law. No argument with merit should be overlooked; and every document is critical to the record. Your case must be appropriately and adequately presented to the court, to protect and safeguard you for all possible appeal issues.
Educational Booklet #AL03-8
Prepared
By:
Center
For Parental Responsibility
CPR
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