any prosecutors out there?

[lizziegrace]

Defense attorneys?

[Kire]

1. Who wants to know?

[lizziegrace]

2. I do

What is a Class D felony?

[merh]

3. it depends on the state

not all states have the degrees for their felonies. Each state is unique.

[lizziegrace]

4. That's what I've been finding

My sister (in the UK)apparently is being charged in Arkansas with a Class D felony for not sending the kids for a Christmas visit with their father. She couldn't because their passports expired and he refused to sign for the renewals. Until this mess is cleared up, my sister cannot come back to the states...

Our judicial system is so fucked up

[merh]

5. It sounds like she is charged with contempt of court, for not

following the court order. (disclaimer: this is not legal advice)

[lizziegrace]

6. She has been found in contempt

but this podunk judge in nowhere Arkansas has trumped up the charge. $30,000 has been spent so far defending baseless charges against my sister and her husband, simply because he was short-paying his child support and lying to the court. Now this asshole's got the U.S. Embassy involved.

He signed over custody because he didn't want these kids. Why does it matter now?

Rhetorical question. My parents are in their 70's and this is slowly killing them.

[Floogeldy]

17. I'm so sorry to hear about your parents.

International law with regard to custody proceedings is a very complicated thing. There are a lot of facts and treaties involved. I only wish you happiness. I pray for the children and parents, hoping that they do everything to cause a positive result from this tragedy.

Tears for the kids, you and your parents. :hug: :grouphug:

[lizziegrace]

18. Thanks

International law and treaties do apply and an attorney she's consulted with in London has verified exactly which ones apply. The judge in Arkansas refuses to acknowledge the international laws and I'm not sure there's a way to make him comply.

She has a case filed before the Arkansas Supreme Court. Hopefuly, it will be decided before the judge finds the $$ to have her extradited.

:(

[rug]

7. Looks like this:

5-26-502. Interference with court-ordered custody.

(a) A person commits the offense of interference with court-ordered custody if the person:
(1) Knowing that he or she has no lawful right to do so, takes, entices, or keeps any minor from any person entitled by a court decree or order to the right of custody of the minor;

(2) Without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another person to take or entice, any minor or any incompetent person from the custody of:

(A) The parent of the minor or incompetent person;

(B) The guardian of the minor or incompetent person;

(C) A public agency having lawful charge of the minor or incompetent person;

(D) Any other lawful custodian; or

(E) A person described in subdivisions (a)(2)(A), (B), or (D) of this section while the custodian and minor are being housed at a shelter as defined in § 9-4-102;

(3)(A) Has been awarded custody or granted an adoption or guardianship of a juvenile pursuant to or arising out of a dependency-neglect action pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., and subsequently places the juvenile in the care or supervision of any person:

(i) From whom the juvenile was removed; or

(ii) The court has specifically ordered not to have care, supervision, or custody of the juvenile.

(B) Subdivision (a)(3)(A) of this section shall not be construed to prohibit a placement described in subdivision (a)(3)(A) of this section if the person who has been granted custody, adoption, or guardianship obtains a court order to that effect from the juvenile division of circuit court that made the award of custody, adoption, or guardianship; or

(4) Accepts or acquiesces in taking physical custody for any length of time of a juvenile who was removed from the person or if the court has specifically ordered that the person not have care, supervision, or custody of the juvenile pursuant to or arising out of a dependency-neglect action pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

(b)(1)(A) Interference with court-ordered custody under subdivision (a)(1) of this section is a Class A misdemeanor.

(B) However, interference with court-ordered custody under subdivision (a)(1) of this section is a Class D felony if the minor is:

(i) Taken, enticed, or kept outside the State of Arkansas; or

(ii) Taken from any person entitled by a court decree or order to the right of custody of the minor while the custodian and minor are being housed at a shelter as defined in § 9-4-102, even if the minor is not taken outside the State of Arkansas.

(2) Interference with court-ordered custody under subdivision (a)(2) of this section is a Class C felony.

(3)(A) Interference with court-ordered custody under subdivision (a)(3) of this section is a Class A misdemeanor.

(B) However, any subsequent offense of interference with court-ordered custody under subdivision (a)(3) of this section shall constitute a Class C felony.

(4)(A) Interference with court-ordered custody under subdivision (a)(4) of this section is a Class A misdemeanor.

(B) However, any subsequent offense of interference with court-ordered custody under subdivision (a)(4) of this section shall constitute a Class C felony.

(c)(1) In every case prior to serving a warrant for arrest on a person charged with the offense of interference with court-ordered custody, the police officer or other law enforcement officer shall inform the Department of Health and Human Services of the circumstances of any minor named in the information or indictment as having been taken, enticed, or kept from the custodian in a manner constituting interference with court-ordered custody or placed with a person prohibited under subdivision (a)(3) of this section.

(2) A representative of the department shall be present with the arresting police officer or law enforcement officer to take the minor into temporary custody of the department pending further proceedings by a court of competent jurisdiction.

(d)(1) A court of competent jurisdiction shall determine the immediate custodial placement of any minor pursuant to a petition brought by the department or an agency of the department to determine if there is probable cause to believe the minor may be:

(A) Removed from the jurisdiction of the court;

(B) Abandoned; or

(C) Outside the immediate care or supervision of a person lawfully entitled to custody.

(2) Except in a situation arising under subdivisions (a)(3) or (4) of this section, the court shall immediately give custody to the lawful custodian if it finds that the lawful custodian is present before the court.

(e)(1) A petitioner shall comply with the requirements of § 9-27-312 with regard to the giving of a notice and the setting of a hearing.

(2) The petitioner is immune from liability with respect to any conduct undertaken pursuant to this section unless it is determined that the petitioner acted with actual malice.


History. Acts 1985, No. 540, § 2; A.S.A. 1947, § 41-2416; Acts 1987, No. 483, § 1; 1987, No. 898, § 1; 1995, No. 1343, § 1; 2001, No. 1503, § 16; 2001, No. 1553, § 11; 2005, No. 1870, § 1.

5-4-401. Sentence.

(a) A defendant convicted of a felony shall receive a determinate sentence according to the following limitations:
(1) For a Class Y felony, the sentence shall be not less than ten (10) years and not more than forty (40) years, or life;

(2) For a Class A felony, the sentence shall be not less than six (6) years nor more than thirty (30) years;

(3) For a Class B felony, the sentence shall be not less than five (5) years nor more than twenty (20) years;

(4) For a Class C felony, the sentence shall be not less than three (3) years nor more than ten (10) years;

(5) For a Class D felony, the sentence shall not exceed six (6) years; and

(6) For an unclassified felony, the sentence shall be in accordance with a limitation of the statute defining the felony.

(b) A defendant convicted of a misdemeanor may be sentenced according to the following limitations:

(1) For a Class A misdemeanor, the sentence shall not exceed one (1) year;

(2) For a Class B misdemeanor, the sentence shall not exceed ninety (90) days;

(3) For a Class C misdemeanor, the sentence shall not exceed thirty (30) days; and

(4) For an unclassified misdemeanor, the sentence shall be in accordance with a limitation of the statute defining the misdemeanor.


History. Acts 1975, No. 280, § 901; 1977, No. 474, § 3; 1981, No. 620, § 8; 1983, No. 409, § 2; A.S.A. 1947, § 41-901.

[lizziegrace]

8. Thanks

it's funny. She could be extradited to the US, lose her freedom (6 years in prison) because her ex refused to sign their passport renewals so they could travel to see him.

I don't even know what to think anymore. The world has gone mad and my father's not going to make it through this...

[rug]

9. Hold on there.

A charge does not equal a conviction.

And a maximum penalty is not necessarily the actual penalty.

If he caused this fiasco, it appears she has a defense.

Give her a call and find out exactly what's going on. Her attorneys can give her an accurate view of the situation.

Meanwhile, have a game of cards with your Dad and try not to worry. The best cure for worry is information.

[lizziegrace]

10. I wish I could

my dad is 2500 miles away. My sister's child support has been put in escrow because her ex convinced that judge that she is moving around Europe with the children. Funny, they've attended the same school for 5 years. And we're talking $600/month. They are flat broke. My parents have spent $30,000 already. They cannot fund this much longer.

My sister can be extradited, arrested, the children given to their father and must wait, hoping that the judge in this tiny county will give her a fair hearing on trumped up charges? I'm sorry to be a defeatist, but I'm not holding my breath.

thanks for the reality check and your replies. I wish we could be sure that justice would prevail.

[Xithras]

12. Your sister made a serious mistake.

No parent has a right to violate a court order granting visitation to the other parent. The fact that her ex wouldn't sign the passport waiver did NOT free her of her legal obligation to send them for visitation, so the charges are valid. From a legal standpoint, your sister should have documented his refusal to sign the papers (sent them to his lawyer along with a legal demand that they be returned signed) and petitioned the court to remove his visitation if he continued to refuse. By not doing that, she violated the judges order. The charge against her, like it or not, is legitimate. She probably won't do ANY time in jail once the situation is full explained, but she will be legally punished.

The law in many states, and the standard used by judges in many cases where it isn't, is that it is the custodial parents responsiblity to ensure that visitation orders are upheld when the custodial parent moves the children away from the other parent. Your sisters ex has the upper hand, but it is a legitimate one...by moving their children to the UK, she took on the responsibility of ensuring that she would always be able to send them back to the US to comply with the court order. If she couldn't do that, she shouldn't have taken them there.

[lizziegrace]

13. Please explain to me

how she can send the children from their home in the UK to the USA when passports for children under age 15 require the signature of BOTH parents for renewal? Her ex refused to sign the forms. No one, not even a child, can travel overseas without a passport. She has his email where he refuses in writing to sign the forms.

[lizziegrace]

14. I believe the email was shared with HIS attorney

his attorney was advising him that without a valid passport, they would be deported from the UK. Sorry, but the UK does not use VISAS to determine whether or not a person can stay in the country.

Ex was hoping for deportation and an emergency custody order from his friend the judge...

[Xithras]

28. But that's where she made the mistake.

I'm not disputing that she had a valid reason for not sending them, but her actions were in error. When the ex refused to sign the forms, she should have IMMEDIATELY engaged the services of a lawyer and taken it to the judge. The judge would have either ordered him to sign the papers, or would have waived the order to send them for visitation. I'm sorry if I wasn't clear in this in my original post, but her mistake was that she did nothing. She had the upper hand the moment he refused to sign the papers, but by failing to take advantage of it she has allowed him to assume the role of the victim.

[Interocitor]

15. She and the kids should just stay in the UK...

...and FUCK her ex on even talking to them since he decided to play hardball like this.

[lizziegrace]

16. She is staying put

her London attorney said the USA has no jurisdiction. But the judge in Arkansas doesn't see it the same way and *could* have her extradited now that it's a felony...

[Interocitor]

21. She should name guardians for the children in case that happens.

So they stay put even if she is kidnapped.

[lizziegrace]

22. I don't know if that would fly

her ex is still alive, even if he's the devil in human form.

[Interocitor]

27. She could get a BRITISH court to remove his parental rights.

Ugly, but it might be a good start.

[Xithras]

29. There's a Hague convention dealing with that.

I believe that both the US and Britain are signatories of the Hague convention dealing with international kidnapping and custody disputes. If she were arrested and custody were awarded solely to him, the UK is treaty-bound to hand the children over unless the guardians are willing to take it to an international arbitrator and fight it out on that stage.

Since the children are not UK citizens, it's very unlikely that the British government is going to offer much support to keep them in the country and away from their American father.

[rug]

31. Article 21 of the Hague Convention

does not compel the return of the child where the petitioning parent is entitled only to partial custody, visitation or access rights. The responding country is required to assist the petitioner in exercising those rights.

The dirt bag will still need to sign for the passports to do this. Which he should have done in the first place.

[Xithras]

32. True only if she is free.

If a felony warrant is issued for her and she is arrested and extradited, the mothers simple assignment of guardianship would not be sufficient to keep custody from the father. Why? Because legally once one parent is incarcerated the guardianship of the children is de facto assigned to the one remaining free. A custodial parent cannot simply reassign their court ordered custody to somebody else to avoid this situation. The mother would need to petition the UK court RIGHT NOW to reassign custody to somebody else, and it's highly doubtful that they would grant that request without some kind of proof that the father is a danger to the children or that removing them to the U.S. would be harmful to them.

Once she is arrested, he becomes the full legal guardian of the children until she is freed again. When he gains guardianship Article 21 DOES kick in, and the UK will have to deport them to the father. And no, children do not need passports in that situation (though they will probably be requested just to keep the paperwork tidy).

FYI, a number of years ago a friends husband left her and took their children to Australia. When he refused to send them back for visitation, she basically used the same method lizziegrace's former brother-in-law is using to get the kids back. The Australians arrested and deported him, and took the children from his new wife and returned them to their mother. The whole situation ended very badly for him, because his felony conviction (no jail time, but he was convicted) ALSO ended up blocking his emigration to Australia (apparently they don't allow felons to become naturalized), and the judge here in California issued an order preventing him from removing the children from California without the mothers permission (which she obviously will not provide).

[rug]

33. It boils down to Arkansas' bail statute.

Notwithstanding her foreign residence, an appearance for arraignment makes extradition moot.

The filing of felony charges alone is not a basis to modify a custody order.

Provided she meets the bail requirements, including the factor that the statute does not mandate incarceration, the custody/visitation/contempt can be litigated independent of the criminal charges.

Obviously all the facts are not on the table but the father's orchestration of events need not lead to a custody shift.

[rug]

19. The essence of contempt is a willful violation of a court order.

If the father made it impossible to comply with the order, the mother has a complete defense.

You're right that jail time is unlikely, since the primary purpose of contempt is to enforce compliance, not punishment.

[lizziegrace]

20. Our concern is that it now a felony charge

I've got several calls out. I thank you for the time you've taken to reply.

It means alot.

[rug]

23. It will work out in due course.

There's always an exit.

[lizziegrace]

25. Thank you

this has been so hard on my family. All the accusations and money and angst when the man signed the authorization to let them move to the UK. When my sister filed contempt charges against him for short-paying the child support, he started this...

For my sister's sake, as well as my parents, I hope this ends soon...

[Name removed]

11. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[never cry wolf]

24. No, you are definitely not an idioy lizzgrace....

This is not legal advice, and many yould argue I don't even have a legal mind... However in perusing theseposts it would seem to me that legally, you opponent has the upper hand and that you and your sis (friend, bro, sis in law... sorry I forgot) and your parents maybe have some attorneys that are not that familiar with the law in this case

[lizziegrace]

26. i'm signing off

my alarm's going off in 6 hours.

thanks to those of you who provided input. It's greatly appreciated.

[progmom]

30. aw geez

:hug: I am so sorry you're going through this.

My thoughts are with you and your family.