I am having a big problem and not sure who I can turn to, hopefully one of you here can provide the answer. My ex-wife left the State of Florida with my kids in violation of Florida Statutes. The statute say that a parent may not more than 50 miles without the permission of the court or the other parent. If they do so, they are guilty of a third degree felony.
Seems pretty straight forward. I am currently going through the court system to try children back, but the process is slow and costly. The point is she has commited a felony and I went to the State of Florida DA and asked them to procecute, but the assistant DA (a woman) told me that “there is no way that I am going to push this issue”. My attorney told me that it is frustrating because the DA’s office frequently refuses to enforce this law, instead telling victims to seek relief via the family courts.
My questions is, how in the world can the DA pick and choose which laws to enforce? Where can I turn to next to try to get the DA to enforce the law? Do I contact a Senator, the news, who??? I just don’t know what the chain of command is here. And does anyone know why a DA can choose not to prosecute a law even when there is overwhelming evidence that one has been broken? I have a distinct feeling that I got the cold shoulder because I was a man and the DA I talked to was a woman. I could be wrong, but that is my gut feeling.
At all levels of government (local/state/federal) both elected and appointed prosecuting attorneys and their subordinates are there to represent the best interests of the government (and in theory and of course perhaps in fact too, the people represented by said government.) For that reason it is essentially precisely the role of these individuals to decide which cases to prosecute and which cases not to prosecute. It is unfortunately the case that if prosecutors decided to prosecute every case that aggrieved parties brought to their attention it would represent an unworkable case load and would harm the proper functioning of the criminal court system.
So it is the unfortunate truth that they must decide sometimes not to pursue certain cases, because they can’t realistically pursue every crime they become aware of and many of the more serious crimes they do need to prosecute every occurrence.
In your personal circumstances it is unfortunate because a criminal offense has probably been committed but the criminal justice system is not interested in the matter. That means you will have to take the advice of the DA you spoke with an pursue this as a civil matter, you will need to get an attorney to represent your interests. You can also look into getting an attorney appointed to represent the interests of your children, while that isn’t guaranteed to help you at all, guardians ad litem can be powerful advocates for the welfare of children and they will sometimes go above and beyond to make sure custody orders are enforced when they feel they are in the best interests of the children.
While I hope for the best, I must say it is an unfortunate situation to be in. I’ve heard horror stories of mothers absconding with children to other jurisdictions (but still within the United States) in violation of a court order. After lengthy civil proceedings the mothers might be held to be violating the direct order of a judge, something that in many situations ends up getting people arrested (willfully ignoring court orders even on minor offenses has quite a high likelihood of putting you in handcuffs in many situations), for whatever reason in the case of mothers who have decided to violate court custody orders it seems like the authorities are essentially unwilling to actually back up those custody orders even when the mother is flagrantly ignoring them and entirely a legitimate target of criminal action.
I have an attorney and we are pursuing the matter in civil family court, but the civil court does not address the felony charge of interference with child custody. Like I said, what I am trying to find out is who is above the District Attorney and has authority to force them to enforce the law?
Welcome to the SDMB, obbn. We put questions seeking legal advice into IMHO (In My Humble Opinion), to emphasize that any answers you receive are just the opinions of anonymous people on the internet who may or may not know what they’re talking about.
IANAL, but it is my understanding that you cannot force the DA to pursue criminal charges if they have already decided not to pursue the matter. They are under no obligation to pursue charges on every single criminal matter that crosses their desk.
The State Attorney for your county (in Florida, they call them State Attorneys, not District Attorneys) is above the ADA, so, in theory, he could make her prosecute. There’s not really anybody above him except for you, the voters, because State Attorneys are elected.
The problem you have is that, in the US, there’s a concept called prosecutorial discretion, which basically means that it’s up to the prosecutor if he or she wants to prosecute or not. You really can’t make them do it, short of some public relations thing to make them want to do it. I mean, you could contact the media and try to make a big enough deal about it that the States Attorney’s office will be pressured politically to prosecute, but if that doesn’t work, I think you’re out of luck.
Just so I’m clear here “left the state” as in permanently moved her residence, or to take a vacation for the summer, or visit family, or get a new job, or meet the man of her dreams or what?
Beyond this, what is her anticipation that you are going to be paying child support if she in in violation of the divorce decree? It sounds like she’s effectively walking away from her entire CS payment.
What is her rationale for moving? What did she tell you about why she was doing?
I’m a divorced dad (kids are semi-adults now) who had his share of frustration with the system and the fact it’s hugely weighted toward the mother no matter what kind of crazy shit she pulls, but I’m thinking there’s more to this than you have detailed.
As Martin Hyde mentions, even if the circumstances are 100% on your side, and the facts in this case are as clear as you seem to feel they are, it is not practically possible to prosecute every case of a mother moving out of state against the wishes of the non-custodial parent.
If you are pursuing the matter in family court, that is all that you can do. Nobody above the DA is going to overrule him or her and force prosecution. Yes, it sucks. No, there is nothing you can do about it.
The state’s Attorney-General (who is elected in Florida) can, at least in theory overide a local prosecutor (elected or not). In practice they’re loath to do so except in the most extreme cases. Unless Florida has a statute allowing crime victims to file private prosecutions (rare, but not unheard of in the moderan era) that’s you’re only option. If you were the mother and your ex was the father the situation would be very different.
She left the state permenatly. Her new husband has children in Georgia, so she took the kids there. As far as child support, I pay every month and on time, in fact I am $26k ahead in child support. I wouldn’t withhold it for two reasons:
1: As the poster above said, watch how quick the authorities will come down on me if I don’t pay
2: It’s (or it’s supposed to be) for my kids. I am not going to punish them because the ex doesn’t want to play by the rules.
As far as more to the story. Oh yeah, lots more. If I told you every disregard for the decree and every false accusation I have endured you would think I am making it up. It is a mess, so much so that my attorney told me that this is without a doubt the worst ex he has seen in thousands of cases that he has handled.
I just don’t understand how fathers are routinely thrown in jail for violation of a decree when it comes to children. She walks away with my kids, I haven’t seen them for 7 months and NO ONE in the law enforcememnt community cares one bit. I now have put my trust in the civil courts, but the case is dragging out for months and I am not made of money. I will be out of money by the time this is done and with any luck I will have the kids back here. The reason for me to want to pursue the charges is twofold: To get the kids back right away and to make sure she thinks twice before doing something like this again.
I hate to say it but I have seen the sexism in the system more than once. Fathers don’t stand a chance, no matter how loving and caring we are towards our children. The system is stacked against us.
Have you thought of suing her for full custody in Georgia or charging her with something creative [I dont think you can for kidnapping, but I may be wrong?] Withhold the child support from her by banking it in florida in a trust account for the kids that her name is not on, overseen by a lawyer.
IAAL, but I am not one in your jurisdiction. That being said, I have a few suggestions:
– Continue working with your lawyer. He or she should be your go-to person for questions such as this.
– Go back to the original child custody/access/maintenance/support order(s) that were issued by the Florida court. What do they say about the current situation? It could be possible that the order overrides the statutes. Or maybe not–remember, I am not familiar with your jurisdiction’s laws and procedures. Once you understand what it says, check with your lawyer to make sure you understand it thoroughly, and go from there.
– Do the states of Florida and Georgia have reciprocity in these matters? If so, it may be possible to enforce the Florida court’s order as regards access (i.e. visitation) matters.
– You said, “Her new husband…” What is his income? Does his income mean that you can apply for a variance in the amount of support that you are paying? That is, given his income, could you be fully or partially off the hook for support payments?
Remember, I do not practice in Florida or Georgia, and I am unfamiliar with either state’s laws in this regard. However, my suggestions are based on what I, as a practitioner would ask my client who found himself in a similar situation. Still, all of these are questions you should be asking your own lawyer. If law enforcement personnel are necessary, your lawyer will advise you, and can alert the proper authorities for you.
Regardless, it sounds to me like this is not a matter that you should be trying to look after yourself. Speak with your lawyer, ask the questions I’ve presented, and find out what your options are.
IANAL and all that, but it seems to me that you would probably want to contact your state’s Attorney General about it. While you’re at it, file a formal complaint against the DA for failing to perform their legal duty.
I don’t have much to offer except sympathy - from everything I’ve read on this board, it does sound like the system is quite weighted towards the mother, regardless of what kind of person she is and the father is.
I think one question you need to ask yourself is, what is best for your kids? It sounds like you would like to see her prosecuted because she broke the law and revenge would feel good, but is that in your children’s best interest, or is pursuing it in family court and getting custody and visitation re-written in their best interest?