State v. Vakilzaden – Child Abduction – Custodial Interference
State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (Conn. 1999).
NATURE OF THE CASE: This family law case involved an appeal after a dismissal of charges in the context of custodial interference.
FACTS: Vakilzaden (D) was charged with one count of conspiracy to commit custodial interference and one count of custodial interference. The charges arose from a criminal complaint that Vakilzaden aided and abetted his nephew (H) in interfering with the custodial rights of the nephew’s wife (W) regarding their child Saba. Vakilzaden moved to dismiss the charges based on the fact that H was a joint custodian. The trial court granted the motion to dismiss based on the Marshak precedent, concluding that the state had not demonstrated that W was the sole custodian of the child at the time of the alleged interference. Under a prior court order, H had only limited supervised visitation based on his risk of flight and past abusive behavior. H later received help from Vakilzaden in distracting H’s wife so that H could take the child from a store mall while Vakilzaden spoke with W. Vakilzaden was charged and the charges were dismissed and this appeal resulted.
ISSUE: Can a joint custodian of a child be liable for child abduction?
RULE OF LAW: Yes. A joint custodian of a child can be liable for child abduction.
HOLDING AND DECISION: Marshak should be overruled. A joint custodian should not be immune from criminal prosecution based solely on his or her status as joint custodian if the state can prove all elements of the custodial interference statute including both knowledge and intent beyond a reasonable doubt. In Marshak, this court was wrong to conclude that a joint custodian could never be liable for custodial interference under any circumstances. When one parent purposefully deprives the other joint custodian of their joint lawful custody of the minor child, a de facto sole custody situation is effectively created. The state asserts that it will be able to prove that Vakilzaden was present during the family court hearings, he was often present during supervised visitation and he assisted H with the purchase of the plane tickets and facilitated the getaway from the mall the day H took the child.
DISPOSITION: Reversed and remanded.