Exercising Self-Help in Custody Cases

    Kathleen Aubain is in the Oneida County Jail in New York for violating a court order.  Aubain has a two and a half year old daughter, Isabellah Rose Campos with Eric Campos.  All three were living in Arizona.  Campos has custody of Isabellah. Aubain’s mother says the only reason Campos has custody is because Aubain didn’t bring Isabellah back to him at the end of her custodial time.

    Aubain then left the state of Arizona and fled, with Isabellah, to Utica, New York.  She didn’t have permission to leave Arizona.  She has been arrested and is currently in jail.  She is refusing to tell authorities where Isabellah is or who is caring for her.  Aubain claims that she is protecting Isabellah who she believes is being abused by Campos.  The Arizona social worker determined that the police investigator who examined Isabellah found the bruising to be consistent with Campos’ account that the child’s five-point safety harness used while riding a Rhino vehicle on rough terrain in the desert caused the bruising. 


http://www.wktv.com/news/local/Mother-still-refuses-to-disclose-Arizona-toddlers-whereabouts-270534811.html

    I have said it before.  Do not exercise self help.  Do not defy a court order.  If you feel like there is something happening, such as abuse, notify the proper authorities, and make a request through the court.  Exercising self help is a good way to lose custody.

Child Support Owed to an Incarcerated Parent

    Tracey Richter is serving life in prison in Iowa for the 2001 murder of 20 year old Dustin Wehde.  Richter has been receiving child support arrears payments from her ex-husband, Michael Roberts who began paying back the child support owed after their divorce.  After she had received $2,000 in payments from Roberts, a judge ordered that Richter no longer has any dependents and doesn’t need the money to support herself.  The judge ordered that the funds be garnished and go to pay the $150,000 restitution that Richter owes Wehde’s family.

    Roberts eventually received custody of the their children and moved back to his native Australia.  He still owes approximately $45,000 in child support arrears and $60,000 in property and attorney fees.  This is still owed even if Richter is incarcerated.  Once child support is incurred, then it’s owed and you can’t get rid of the obligation.  It’s non-dischargeable in bankruptcy and becomes a creditor against your estate after your death.  So, just because Richter is in jail for life doesn’t mean that Roberts doesn’t owe the back child support.  The judge made the decision here that the payments that would have gone to Richter because it’s back child support technically owed to her, will go to settle an existing debt she owes, the restitution.

    It also should be noted that Richter currently owes Roberts $20 per month in child support under a separate court order.  This current order doesn’t affect the amount of arrears that Roberts owes since that is already an existing and calculated debt.

http://www.kcci.com/news/judge-child-support-will-go-to-murder-victim-restitution/26416116#!Xc2pS

http://www.desmoinesregister.com/story/news/crime-and-courts/2014/06/11/judge-orders-child-support-restitution-tracey-richter/10312483/       

Incarcerated Birth Parents' Rights to Their Children

    Kim and Dave Hodgin became the foster parents of Sonya before she was two.  She was adopted by them in 2008.  Before the adoption was finalized, Sonya’s birth father, John McCaul pled guilty to transporting firearms and was sentenced to 15 years in federal prison.  Under Tennessee law, parents who are incarcerated for more than ten years do not have any rights to a child under the age of 8, so McCaul’s custody rights to Sonya were terminated.  McCaul later cut a deal by providing information that he had about a homicide and his sentence was reduced to 7 ½ years which allowed him to assert his parental rights and fight to reverse the adoption. 

http://www.cnn.com/2014/05/15/us/tennessee-adoption-battle/

    In November 2009, the adoption was reversed but Sonya continued to live with the Hodgins while both sides disputed custody.  In January 2014, a judge returned Sonya, now 9 years old, to McCaul’s custody.  Sonya has moved from the Hodgins’ home in Tennessee and now lives in Omaha, Nebraska with McCaul.  According to the Hodgins, Sonya has been begging to come home.  The Hodgins have filed a petition in Tennessee requesting that Sonya be returned to their custody.    

http://www.nydailynews.com/news/national/girl-begs-adoptive-parents-retrieve-biological-dad-custody-article-1.1795109

    Both these article imply that there were no visits between Sonya and her biological father during his incarceration, so she essentially has no memories of him and as the Hodgins state, he is a stranger to her.  It is surprising to me that custody was changed so drastically and so suddenly.  I am not implying that this was the wrong decision, only that I am surprised that the judge ordered Sonya to live with essentially a stranger without some type of transitional period.  While McCaul will remember Sonya, the reverse isn’t true and I would imagine there would be a slightly less traumatic way to transition Sonya into McCaul’s custody gradually.

Child Support Obligation After Death of the Child

David A. Shane, now 47 years old, was convicted in 1997 of the 1994 murder and feticide of 23 year old Nicole Lynn Koontz who was seven months pregnant with Shane’s co-defendant’s, Robert L. Hicks’, child. Shane is serving a 60 year sentence for the crime.

Shane and his ex-wife divorced in 1990 and have a daughter Ashlie born in 1988. He was ordered to pay $67 per week in child support. Ashlie died in a house fire in April 2006 when she was 18 years old. At the time of her death, Shane was not current on his child support payments and owed some child support arrears. In December 2012, Delaware County child support obtained an income withholding order to recover some of the child support arrears.

Shane earns $0.95 per hour working in the prison laundry and works about 37 hours per week. The Delaware Circuit Court ruled that Shane must continue to pay 55% of his prison wages to pay off the child support arrears because the child support arrears don’t terminate with the death of the child. The Indiana Court of Appeals upheld this ruling and found that Shane missed the deadline to appeal the decision by nine days.
 
http://www.usatoday.com/story/news/nation/2014/03/31/convicted-murderer-must-pay-child-support/7118465/

In California, the obligation to financially support your children is taken seriously. Failure to pay child support can result in revocation of the driver’s license, or any other licenses or permits issued by the state of California, or even potential jail time. Child support arrears can’t be discharged during bankruptcy and if the paying parent dies, if there are child support arrears, the receiving parent becomes a creditor against paying parent’s estate for repayment of the arrears. While the death of the child would have terminated the current child support order, the arrears were incurred while the child was still alive and the arrears don’t get discharged because the child is no longer living. The receiving parent is still owed the money that he/she should have received as financial assistance from the other parent during that period. 

Death Row Inmates and Custodial Rights

29 year old Nancy Gonzalez was a federal corrections officer when she was impregnated by death row inmate Ronell Wilson who has been convicted of murdering two police officers. Their son, Justus, is now seven months old is in the custody of one of Gonzalez’s relatives. Wilson request for parental rights has been denied since he is already "civilly dead". Gonzalez has lost custody of Justus since she intentionally became pregnant during the commission of a crime (having sex with a death row inmate while a correction’s officer), knowing that neither parent could care for the child.

Gonzalez also admitted to going through an "alcohol and cocaine binge" when she was eight months pregnant and to also driving while intoxicated with Justus in the car at least twice. 

http://www.nydailynews.com/new-york/guard-impregnated-killer-loses-custody-baby-article-1.1521047

So it appears, at least in New York, death row inmates lose custodial rights to their children since they are considered "civilly dead".