Without knowing the facts (and not being prepared to say he was clearly a better parent, which I’m not) he screwed up per Solomon fifteen years ago. That’s why my Father of the Year plaque for him is nowhere to be found.
Now it’s mom’s turn. She can have “justice” or maybe let her kids continue with a life they seem content with. He was still wrong, per Solomon – fifteen years ago. Her upsetting the applecart now out of spite (I’m glad others pointed out that the timing is suspect – if she hadn’t had her ego lanced by the daughter’s rejection, it isn’t clear she’d have been so keen for redress of the crime) seems like adding (her) insult to (his) injury of them. Solomon part 2, and the kids get hosed again.
It’s not her doing anything to him, it’s the law. Her motivations (which have no reason to suspect) are not relevant. This guy has to answer the state, and he WILL answer to the state. We do not reward kidnappers with custody. Period.
Hmm. Elizabeth Morgan “snatched a toddler in defiance of a court order,” did do 24 months, not “life,” in jail, and she was freed by an act of Congress and got to raise the daughter. She’s currently married to an appellate judge I think. Having reviewed more available facts in that case, than in this, I’m more able to form a substantive opinion over whether she was “right” to take the kid in that case, but at least some non-trivial number of otherwise-respectable people apparently concluded that there were circumstances in which defying a custody order could be an appropriate or necessary action. Not enough facts here to know that (I can’t, for instance, determine if the mom had sole vs. joint custody, and there’s no report of the father’s story for why he thought he had to do what he did), so I’ve focused on what will make the teenage kids’ life better or worse right now, and can’t convince myself to any degree of certainty that it is what mom just did, or that mom was solely motivated by making their lives better.
I don’t agree that it doesn’t matter if jailing the father has the effect of messing up the kids and making them unhappy: that’s a serious downside.
However, I don’t agree that leaving the situation alone would necessarily avoid messing up the kids. Don’t you think it has a negative effect on kids to send them the message “it’s okay if you commit crimes and hurt other people as long as you avoid getting caught for long enough”? How about the message “as long as somebody is looking after you and making you happy, it doesn’t really matter what else they’re doing in their lives, because your own best interest is the most important thing”?
There’s a lot of mess-up inherent in this situation no matter how you slice it.
No one asked and I don’t run the circus, and this would never work in real life, but my rough justice solution would be to send the child welfare people in for an objective assessment of whether everything is, as it appears, more or less okay. If they uncover pathology, of course they’re taken out. If the kids have just been living a reasonably normal life with a single parent – let that continue, with the possibility of visitation from mom if they want it. Then get them both off to college.
Then arrest dad, let the prosecutor use his discretion to decide whether he needs some greater than 30 days in the cooler but less than hard time in jail to send the message. A form of deferred adjudication that averts the most damaging disruption of the kids’ life NOW.
I would disagree that kids will be messed up from this (or at least more messed up than they were already). Certainly, the kids will be unhappy about it for awhile, but if making your kids unhappy were a crime (or even a bad thing) every parent in the world would be in and out of jail continually.
I’m sorry, I don’t think I’m not doing a good job explaining my point on this one, so I’ll try to be a little more specific. The reason that the best interest of the children is the primary concern in this case is because of the nature of the crime committed. The crimes of the father leave the children as the primary victims and, to a somewhat lesser degree, the mother. In the case of most other crimes, like your example of embezzling, the victim is someone else.
I believe that it is the damages to the victims that are most meaningful when determining the punishment of the crime. As such, in the case of embezzlement, that the children of the criminal would be affected by the punishment is essentially irrelevant. In the case of child custody, that the children, the very victims of the crime for which punishment is being considered, would suffer as a result of the punishment ought to have some bearing on the consideration.
This is exactly why I don’t think it’s an open and shut case of throwing the father in jail and returning the children to the mother. The father still broke the law and deserves punishment, but as long as his punishment could have an adverse affect against the very people from whom it is intended to act as a form of restitution is meaningful enough in my mind that the specifics of the case are significant and need to be taken into consideration.
Yeesh, this seems to me overly dismissive. Even if I don’t agree that the father should be just left alone to go on raising the kids, I can’t view the alternative (father off to jail, home broken up) as something that won’t be seriously traumatic for the children. Not just on the ordinary childish-trauma scale of getting pissed off because your parents won’t buy you a pony, either.
Okay, I think I understand your point better now. But how about the contention that, as I mentioned earlier, not punishing the father could also have an adverse effect on the kids? They are old enough now to understand that they’re not the center of the universe, and saying that legality should take a back seat to their happiness is not a good message to send them, IMO.
Thirty days in jail for kidnapping, just because the kids have little knowledge of their time before being kidnapped and seem happy. You actually feel those kids temporary “happiness” is worth throwing the law out the window and endangering ghod knows how many kids who’s non-custodial parents will be encouraged to do the same thing?
No. You don’t reward kidnapping with custody under any circumstances. The one thing that absolutely cannot be considered is legitimizing the abduction of children, no matter how nice the abductor appears to be.
Well you know I did say more than 30 days, which I use as an example of a wrist-slap, which is not the appropriate level of don’t-f-with-the-law in a case like this (unless he comes forward with a great, compelling argument that he acted out of necessity to prevent greater and certain harm to the kids). Two years wouldn’t strike me as too much, especially if he doesn’t have a particularly good story for why he subverted the process.
Your position is again focusing on him, and the use of “reward” goes back to some mother vs. father struggle with the kids being the prize of who “wins.” That certainly seems to be mom’s attitude. My proposal, in the long run, “rewards” the kids (assuming dad’s providing a good home) and (later, but punishment often comes later rather than sooner) punishes dad.
By the way, your absolutist position is inconsistent with, for one, the common law defense of necessity. Don’t bother, I know – the necessity defense can kiss your ass. Well, but, the common law still exists.
How much would he get if it wasn’t his kids, but he kidnapped them and convinced them to love him? Should a kidnapper get a much shorter sentence if his victims at that time would be made unhappy?
But you don’t understand the law, as witness your insistence that there can never be a circumstance in which a law can appropriately be disobeyed, when every first year law student knows this not to be true.
And “the LAW” (the caps make it more legally?) is an instrument of substantial justice. It is not always and invariably the embodiment of or identical to justice.
Ok, so again, what if they hadn’t known their abductor? As someone asked before, say they have been taken as toddlers by a stranger, and they were happy now, 15 years later? Is it in the best interests of the kids to stay with that person? Does that make it all better? Kidnapping is kidnapping.
The OP seems to be saying that if Phil Garrido had kidnapped his victim while she was still an infant and didn’t fornicate with her that it would have been okay. No, kidnapping is still kidnapping. That he was their father might make it less heinous than other kidnappings, but that should be taken into account at the time of sentencing, not charging.