State v. VakilzadenState v. Vakilzaden
Lead Opinion
Opinion
On December 11, 1997, the defendant, Anthony Vakilzaden, was charged with one count of custodial interference in the first degree in violation of
The state appealed from the judgment of the trial court to the Appellate Court,
In Marshak, the plaintiff wife brought a civil action seeking damages against several defendants for conspiracy to interfere with her custodial rights to her children arising from the defendants’ actions in helping her husband remove the children from her custody. Her husband subsequently fled the country with the children. Id., 654-58. On the basis of authority from other jurisdictions and § 700 of the Restatement (Second) of Torts, the trial court found three of the four defendants liable to the plaintiff for having conspired with her husband and for having aided and abetted him to commit the tort of child abduction, and awarded monetary damages to the plaintiff. Id., 660, 662-63. On appeal, we reversed the trial court’s judgment, concluding that the defendant
Marshak may be distinguishable from the present case on the ground that a court order permitting only limited, supervised visitation between a father and a child satisfies the sole custody requirement of Marshak. If a parent has sole custody, a person in the position of the defendant, who allegedly assisted the father in the abduction of the child, properly may be charged with the crime of custodial interference.
Although we could reinstate the information against the defendant on that basis, we do not stop there. We conclude that Marshak should be overruled, and that the dismissal of the criminal information in the present case was improper on that ground. We therefore reverse the trial court’s judgment dismissing the information and remand the case for further proceedings according to law.
It is well settled that when reviewing a motion to dismiss a criminal information, we are required to assess the facts in the light most favorable to the state. See, e.g., State v. Evans,
Mirjavadi and Fabriz, both Iranian citizens, were married in their homeland in 1990. They have one daughter, Saba. In September, 1995, when Saba was one and one-half years old, the family traveled together to the United States on a temporary visa. Mirjavadi and Fabriz separated approximately one month after their arrival in the United States. Mirjavadi retained physical custody of their daughter and moved into her brother’s home in
Mirjavadi applied for political asylum and, in January, 1996, brought an action for the dissolution of her marriage to Fabriz in the Superior Court for the judicial district of Stamford. On February 5,1996, a hearing was held on Fabriz’s motion seeking visitation rights with Saba. Fabriz notified the court that he was not seeking any form of custody, but, rather, an order of visitation. After making it clear that (1) physical custody of Saba would remain with Mirjavadi and (2) visitation with Fabriz would be supervised based on his risk of flight with Saba and his past abusive behavior, the trial court, Harrigan, J., ordered the parties to consult with the family relations division of the Superior Court and to report back to the court if and when the details of a visitation agreement between the parties had been reached.
That same day, Fabriz and Mirjavadi informed the trial court that they had come to an agreement as to the terms of supervised visitation. The court entered the order for visitation pursuant to their agreement, which allowed Fabriz three hours of supervised visitation per week in the presence of appointed monitors.
On September 30, 1996, Fabriz, while accompanied by the defendant, purchased two one-way tickets to Istanbul, Turkey, for a flight departing from John F. Kennedy Airport in New York on October 5, 1996.
Varone indicated to police that during the visit, Fabriz went into one of the mall stores with Saba while she remained outside the store talking with the defendant. Varone further stated that although she was not sure about the time as she was not wearing a watch, she estimated that between 4:15 and 4:30 p.m., she became concerned as to Fabriz’ whereabouts. Fabriz never emerged from the store. Varone and the defendant searched for Fabriz and Saba to no avail. Mirjavadi returned to the mall at the scheduled time of 5 p.m. to retrieve Saba, at which time Varone informed Mirjavadi that Fabriz had disappeared with Saba. Mirjavadi has had no contact with Saba since October 5, 1996.
In Marshak, we indicated that recognition of “the tort of child abduction or custodial interference, as applied to either a parent or third party, might well play an important role in encouraging the speedy return of abducted children to the custodial parent . . . .” Marshak v. Marshak, supra,
The state argues that we should overrule Marshak and allow joint custodians to be held criminally liable if, in abducting their own child, their intent is to deprive the other joint custodian of his or her equal parental rights permanently or for a protracted period of time in accordance with
Although “[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it . . . [t]his court, however, has recognized many times that there are exceptions to the rule of stare decisis. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.” (Citations omitted; internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 318,
In Marshak we held that, “[t]he absence of a specific finding by the trial court that the defendant had conspired with or aided the children’s father at a time after the father had been stripped of any legal entitlement to custody of the children is fatal to the plaintiffs claim.” Marshak v. Marshak, supra,
In reaching this conclusion, we are persuaded by the interpretation of similar statutes in other jurisdictions. In construing its analogous statute, the Maine Supreme Court, in State v. Butt,
Similarly, in construing Alaska’s custodial interference statutes, that state’s Appellate Court posed this question: “Did the Alaska Legislature intend [the statutes] to reach the conduct of a parent whose right to physical custody of the child remains undiminished but whose conduct deprives the other parent of his or her right to custody?” Strother v. State,
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion MCDONALD, C. J., and BORDEN, NORCOTT and PALMER, Js., concurred.
Notes
“(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
“(b) Custodial interference in the first degree is a class D felony.”
“(b) Custodial interference in the second degree is a class A misdemeanor.”
The trial court granted the state permission to appeal pursuant to
While the three defendants who were found liable appealed, two of tiróse defendants withdrew their appeal, leaving only one defendant involved in the appeal before this court.
The defendant was identified by a Turkish Airlines employee as being one of two men who had purchased the two one-way tickets for Fabriz and Saba. The other man identified by the employee was Fabriz himself.
The arrest warrant affidavit for the defendant provides in relevant part: “Friday, Oct[ober] 11, 1996. This date [Sargeant Ralph Romano of the Stamford police department] contacted . . . Turkish Airlines, J.F.K. Airport, New York. For the date of Oct[ober] 5, 1996, their records indicate that
Although we are concerned with the domestic violence hypothetical posed by the amicus curiae Connecticut Women’s Education and Legal Fund (CWEALF), we do not agree with its legal conclusions. “CWEALF believes that adoption of the State’s proposed rule places women who want to leave the family home with their children — because of an abusive husband or an abusive father — in ... [a] peculiar position .... CWEALF believes that the state’s construction of the custodial interference statute will, in many cases, eliminate from consideration the mens rea element of the statute.” We disagree. The state is still required to prove, beyond a reasonable doubt, that the accused (1) intended to hold the child permanently or for a protracted period of time (2) knowing that he had no legal right to do so. See
Indeed, the Connecticut legislature addressed a similar concern during its debate on the custodial interference statute. The legislative history supports the supposition that joint custodians are subject to prosecution under the statute. During the legislative debate on the 1995 amendments to the custodial interference statutes, when the word “detaining” was added to subsection (a) (2) of
Concurrence Opinion
join, concurring. I agree with the majority that, to the extent that Marshak v. Marshak,
In its briefs to this court, the state seeks, in effect, to create a presumption that a joint custodian knows from the moment a child is bom, that she has no legal right to interfere with the custody rights of the other parent. According to the state, “[o]ne joint custodian has no legal right to take a child from the other joint custodian with the intent to hold such child permanently or for a protracted period of time. A joint custodian has no legal right to unilaterally award himself/ herself sole custody of the child, infringing on the legal rights of the other joint custodian.” By ignoring the element of knowledge, the state proposes a rule that would allow criminal liability to be imposed upon a joint custodian who infringes upon the other parent’s custodial rights but who is merely acting to protect the child. The risk that criminal liability will be imposed upon a parent who takes her child to avoid further abuse to herself or her child is decidedly contrary to the important public policy of this state to “protect children whose health and welfare may be adversely affected through injury and neglect . . . and to make the home safe for all children . . . .” (Internal quotation marks omitted.) State v. Miranda,
In addition, the imposition of criminal liability based upon this presumption of knowledge effectively could limit a parent’s rights under both the Uniform Child Custody Jurisdiction Act (UCCJA);
Although the custodial interference statutes preface liability on the custodial status of the victimized parent,
Knowledge cannot be presumed simply because the accused has a particular custodial status. Therefore, pursuant to
Indeed, if, in any given situation, the controlling consideration is a determination that the accused acted with an awareness that she had no “legal right” to interfere with the custodial rights of the other parent, then joint custody would not be a bar to conviction of a
Rather than impute knowledge by virtue of one’s custodial status, the state must prove that the accused knew that she had no right to take the child. The onus belongs on the shoulders of the state, by virtue of the statute, to prove knowledge. But a woman who flees the home with her child to avoid physical abuse cannot be deemed to have done so knowing that she had no legal right. Moreover, it is not only in an emergency situation that I would presume the defendant’s lack of knowledge. Although properly motivated, contained •within the state’s efforts to make criminal liability easier to impose in abduction cases is the hidden danger that, in order to avoid criminal prosecution, the parent acting to protect the child must wait for an emergency to erupt or for physical harm to occur before she elects to leave the home to avoid the abuse. In addition to making a difficult situation dangerous, at best, and impossible, at worst, such a requirement would put the onus on the parent to justify her actions, in violation both of the statutes as well as common sense.
As the majority opinion makes clear, Orang Fabriz is not inherently immune from criminal prosecution solely on the basis of his status as joint custodian of Saba Fabriz. Therefore, the judgment of the trial court dismissing the charge of custodial interference against the defendant must be reversed, and the state should be given the opportunity to prove that the defendant knew that he had no legal right to interfere with the custodial rights of Lila Mirjavadi, Saba’s mother.
In light of the delicate balance of vital interests involved in this case, I believe that a parent should not be presented with this Hobson’s choice. To tell the party being abused that “you’re a criminal if you stay and a criminal if you leave” is not a very comforting message to send.
Indeed, under the UCCJA, numerous courts have exercised jurisdiction in “emergency” situations and have in fact altered custody arrangements where parents have kept children beyond permitted visitation periods or have removed children from one state to another to avoid the causes of the “emergency.” See Coleman v. Coleman,
Concurrence Opinion
concurring. I join the majority opinion. I also fully agree with the thrust of Justice Katz’ concurrence that, in prosecutions under
I disagree with Justice Katz, however, that the majority opinion “discounts” the importance of the knowledge requirement. See page 669 of the concurring opinion by Katz, J. (“[b]y treating [the] problem [of domestic violence cases] in so perfunctory a fashion, the court, in effect, lends credence to the state’s proposal, which essentially discounts the [knowledge] element of the custodial interference statutes”). On the contrary, the majority makes clear that the state must prove the element of knowledge beyond a reasonable doubt. See footnote 8 of the majority opinion.