Thread: DV Threshhold?
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Old 09-06-2013, 10:46 PM
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Quote:
Originally Posted by P5Ret View Post
A key points has been overlooked, there are no custody orders in place according to the op. He has had unrestricted access to his children in the past, what was different this time? With no orders in place can she just deny access to the kids on a whim? Now granted his behavior is unacceptable, but like the old saying goes there are two sides to every story and we have just one here.
Sir,

Thank you for making an excellent point. It's simply not fair to judge the OP's incident without having access to both sides of the story.

When situations like this develop, it usually is a good idea for both combatants to seek the representation of counsel. Communication is easier that way, and counsel also has the ability to better temper the expectations of the combatants.

Previous posters have cited a number of laws that may, or may not, have been violated. It's always important to remember the elements of those laws:

As to visitation - Absent a court order, each parent has an equal right of access to the child.

Criminal Threats (422 PC) - The elements require both the making of the threat, and the creation of a "sustained fear" on the part of the victim that the threat will be carried out. Saying "I'm going to kill you" is not a violation. Saying "I'm going to kill you" and the victim being concerned for their safety is not a violation. Saying "I'm going to kill you" and the victim believes they are going to die, there is a violation. The words "fear" and "sustained" as used in the code have meaning.

Vandalism (594 PC) - Destroying personal property alone is not vandalism. To be an act of vandalism, the destruction must be done "maliciously." If the damage is done as a consequence of the combatants efforts to reach their child, and the "malicious" element cannot be shown, then there is no act of vandalism.

Child Concealment (278.5) - If a parent conceals a child from the other parent, or person having a right of custody, then a crime is committed (with some very narrow exceptions where there is immediate danger to the child).

Private Person's Arrest (142 PC) - A private person's arrest is a useful tool where LEO's lack the authority to make an arrest. This is typically where the offense is a misdemeanor, did not occur in their presence, and when no special provision of law otherwise permits the arrest. Up until 2003, the law required officers to accept custody of private persons arrests. Many still believe this to be case and seek to use this tool to force officers to make arrests contrary to their judgement. That no longer works. The Ninth Circuit published a decision that hold officers responsible for the judgement used in accepting custody. PC 142 was amended to allow officers discretion to decline private persons arrests.
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