Loophole Protects Child-Snatching ParentsBy Allan Lengel
Washington Post Staff Writer
The Washington Post
Saturday, March 3, 2001; Page A01
Just as the judge was about to grant the father temporary custody of his 5-year-old son, the mother complained of feeling ill. She excused herself from the courtroom, snatched the boy from the drab hallway and slipped out of the District.
The father, Kendall Shafer Smith, turned to police. But they couldn't go after his estranged wife, Taylar Nuevelle, because of a quirk in the D.C. parental abduction law that prevents police from arresting parents who flee the city.
The abduction was in June 1999. Since then, Smith hasn't seen his son, Kalil Smith-Nuevelle, now 7, or his ex-wife, whom the judge called "unstable."
"It's infuriating," said Smith, who is unsure of his son's whereabouts. "It's painful. I don't go more than a few hours without thinking of him still."
The 15-year-old law has put District parents at a distinct disadvantage. In Virginia and Maryland, for example, police can arrest and extradite a parent who unlawfully snatches a child and flees the state. Police in those states also can turn to the FBI for assistance and list the warrant in a national crime database.
But D.C. police are powerless. They can't arrest or extradite a parent who flees the city with a child; they can't list a warrant in the national crime database; and the FBI won't get involved without an extraditable warrant.
"There [are] parents whose children aren't being found and it's because the law doesn't make sense," said Nancy Hammer, director of the international division of the National Center for Missing and Exploited Children. "The way it's written now, it's an incentive not to come back."
The problem: It's a felony if parents abduct their children and flee the District, but the statute calls for a penalty equal only to that of a misdemeanor -- up to one year in jail. Police say a 1970 District law prevents them from executing arrest warrants outside the District if the crime carries a misdemeanor penalty of one year or less.
D.C. Council members apparently failed to foresee the glitch when they crafted the parental abduction law in 1986. They limited the penalty to one year so that the D.C. corporation counsel's office, not the U.S. attorney's office, would prosecute the cases, council legislative aides said. The corporation counsel, the city's legal arm, can prosecute crimes only if they carry misdemeanor penalties.
Legislative aides said it was an issue of home rule; the council didn't want to rely on the federal government to enforce such an important law, and figured that city prosecutors would make it a higher priority, a legislative aide who worked on the bill recalled.
In recent years, some law enforcement officials and parents have prodded officials to change the law. All it would take, they point out, is shifting the maximum penalty from one year in jail to one year and a day.
But police Detective Rick Adams, who works on parental abduction cases, says some city officials don't take the law seriously. Before 1986, parents could not be criminally charged in the District with abducting their own children.
"The legislative change would mean taking a hard-line approach to parental kidnapping," Adams said. "It's been looked at as a minor domestic incident. It shows me no one took it seriously."
Each year, there are about 354,000 parental abductions in the United States, according to the U.S. Justice Department. Some parents say they take their children to shield them from mistreatment.
Last year in the District, the police youth division handled 32 parental abductions, compared with 18 the year before. In most cases, Adams said, the D.C. law posed no problem -- police simply located the fleeing parent, who voluntarily returned the child. In most instances, no criminal charges were filed.
But not all the children were returned. D.C. police are now looking for six children, one of whom has been missing for more than seven years.
In that case, Carl Dodd, now 34, went to pick up his 4-year-old daughter, Marilyn, from her mother's Southeast Washington home for a court-approved visit in August 1993. He found that the girl and her mother, Mary Jane Byrd, had vanished, court records show.
Before the abduction, court records show, the mother expressed concern over Dodd's fitness as a parent, and said the girl often acted aggressively after seeing him.
But in January 1994, several months after the abduction, D.C. Superior Court Judge Michael L. Rankin ruled that Dodd was "stable, productive and levelheaded" and granted him full custody.
Dodd spent thousands of dollars hiring detectives and lawyers to find his daughter. He and his wife Paula Dodd, 35, frequently drove by the home of the girl's mother, where the grandmother also lived, checking for signs of Marilyn.
Two years after the abduction, Adams was assigned to the case. It was then, Paula Dodd said, that Adams told her and her husband of the limitations of the D.C. parental abduction law. "I was sort of astonished," she said.
That case, Adams said, prompted him in 1995 to go to the corporation counsel's office to push for change. "They told me they'd look into it," he said. "I don't think their office made any kind of effort to change it." The corporation counsel's office declined to comment.
Today, Dodd wonders whether his daughter will be returned. "It's like a piece of my heart has been taken away from me," he said. "There's times when I cry inside just wondering how she's doing. We just hope one day we will see her again before it's too late."
Barbara Smith, Byrd's attorney, declined to comment.
More recently, Kendall Shafer Smith, 32, lobbied to change the law. His problems began after his four-year marriage faltered in Santa Cruz, Calif. He and his ex-wife shared custody of Kalil, and both moved to the District around January 1999. About six months later, Smith filed for an emergency custody hearing, contending that his ex-wife, now 31, was denying him access to the child.
On June 29, 1999, D.C. Superior Court Judge Zoe Bush was about to grant temporary custody to Smith when his ex-wife left the courtroom and ran off with the child, court records show. Police obtained an arrest warrant for parental kidnapping. But Smith soon learned of the law's shortcomings.
"I thought it was an active warrant and people were looking," said Smith, a scientist who now lives near New York. "It took a while to realize that nothing was happening."
Carl Messineo, the mother's attorney, said she had her reasons for shielding the child from Smith, including concern for the child's physical and emotional safety. "I think everyone who testified [in the custody hearing] indicated she was an exceptionally concerned and caring parent."
About eight months after the hearing, Bush granted sole custody to Smith, saying there was no evidence that Smith "posed or has posed any real threat to the safety" of the mother or child.
She also wrote that the mother "clearly loves the child but is unable to act in the child's best interest because of her own instability," and noted that the woman once tried to kill herself while she was at home alone with the child.
Smith was overjoyed by the ruling, but felt it rang hollow.
"It's broken," he said of the law. "It's a clear mistake."
Still, he didn't give up. He and his lawyer went to the police department and D.C. Council member Harold Brazil (D-At Large), who wrote D.C. Police Chief Charles H. Ramsey in August 1999, stating: "Please advise me whether or not you support such a change in the law."
Ramsey, through a department spokesman, said he told Brazil to do whatever it took to protect the children.
Nothing ever came of it.
Brazil said Thursday that he didn't recall receiving a response from Ramsey. He added that he plans to introduce legislation to toughen the penalty. "We'll just have to fix that loophole in the law," he said. "We just can't tolerate that type of situation in a civilized society."
Denise Hill, 33, of the District, echoed Smith's frustration.
Hill had been caring on and off for months for her cousin's 3-year-old daughter, Alexis Stephanie Gainey, at the behest of her cousin and the child's grandmother. In November 1995, Hill was awarded custody after the mother, Ronia Marie Gainey, failed to appear for a custody hearing, court records show.
Last Christmas, Hill left Alexis with the grandmother in Southeast Washington for the evening. By the next day, the toddler's mother, who was visiting from Atlanta, vanished with her daughter, police said.
Hill went to D.C. police but learned there was little they could do.
"She can't be locked up" because she's fled the city, she said. "It works in her favor instead of mine. This is very frustrating."
© 2001 The Washington Post