December 01, 2001
New twists in custody fight
Mom acquitted of kidnapping gets triplets todayBy HEATHER BIRD -- Toronto Sun
It is no surprise, I guess, that at 10 this morning, Carline Vandenelsen, the woman who spirited her triplets away to Mexico, will be picking them up for a scheduled access visit.
The children's father tells me she has them until 6 p.m. tomorrow night and should be supervised by one of her sisters, who lives in a small place just outside of Waterloo.
What was surprising to me, given her recent acquittal on kidnapping charges, is that these bi-weekly visits are just the beginning. Vandenelsen has given Craig Merkley notice that she wants her access expanded. She's asking for even-steven, two weeks on, two weeks off. Holidays, presumably, are to be negotiated separately. The feuding parties are scheduled to be in a Stratford court next Friday.
It is just the latest in a legal odyssey which began for this family in December 1995 when Peter, Gray and Olivia were just shy of their second birthdays.
What has made this case so unusual is not necessarily Vandenelsen's acquittal on the kidnapping counts. (That is under appeal.) The verdict was clearly a case of "jury nullification," where the jurors ignore the evidence before them to arrive at a decision driven by emotion. (One of the more famous examples of this is Henry Morgentaler.) In short, they believed her because they wanted to do so. Rejecting her was uncomfortably close to rejecting their own mothers.
No, the oddity in this case is that she had lost custody in the first place. In a system widely perceived to be mother-biased, it is extremely rare to find a judgment that affords custody to the father, particularly when the children are so young.
From a distance, Carline Vandenelsen seems to be incapable of putting her children's needs ahead of her own. It is a view, it seems, which was shared in part by Mr. Justice Robert Abbey who decided in March 2000 to limit her access to alternate Saturdays.
That order was to stand until October when Abbey would rule on a permanent arrangement. It was with this ruling pending that Vandenelsen packed some pillows and blankies in the trunk of her Hyundai and stuffed the children in with them. Then she lit out for Mexico.
Abbey found that Vandenelsen was clearly intelligent, so much so that she "demonstrated an unusually high degree of competence" when representing herself in court. As well, she was "a highly stimulating parent" with the potential for contributing "positively" to the lives of the children.
But psychological testing also revealed that she had "a tendency to blame others, to externalize the cause of adverse events and to be mistrustful and generally self-indulgent." In addition, she was found to be combative, single-minded, domineering, ego-centred, resentful and angry to a level that interfered with her judgment.
By contrast, her ex-husband lacked assertiveness, tended to worry and was over-sensitive. But these traits, the psychologist concluded, wouldn't interfere with his parenting.
In the end, the judge was worried the mother's character would cause problems. "There is clear evidence in this case of the existence of personality traits which, if not controlled by the defendant, have the potential of destroying the emotional well-being of the children.
So, she lost them, not so much for what happened, but for what could have happened. It is also worth noting that neither side was squeaky clean. The whole time she was telling the children that Merkley wasn't their real father, he was breaking the law by taping the conversations.
So the system worked the way it was supposed to work. It's not up to the assessors to figure out who's right and who's wrong in the long-standing grievances that accompany all cases.
It's up to them to determine what is in the best interests of the children.
Abbey looked and, in a fair and balanced way, concluded that Merkley's stability in both his nature and his personal life would best serve the needs of the kids. There didn't appear to be a bias in his ruling. For either side.
The looming custody fight will no doubt take a toll on the children who have not emerged unscathed from their ordeal. In recent weeks, their school principal has phoned Merkley about behavioural problems manifested by all three of them.
In the meantime, Merkley has learned his wife's boyfriend has recently moved. To Costa Rica.
"And that scares the hell out of me."
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Copyright © 2001, Canoe Limited Partnership.