State v. Lori T., 345 Conn. 44 (2022) (criminal conviction for custodial interference in the second degree)
Officially released: October 18, 2022
This is a criminal case. However, it pertains to the crime of custodial interference. This update is designed to inform family law lawyers, rather than analyze the law as pertains to the criminal conviction.
1. Mother’s conviction for custodial interference in the second degree was upheld by the Supreme Court, primarily due to Mother’s own statements indicating that she took no affirmative action of any kind to attempt to return the children to Father as required by the court orders.
2. The standard under this criminal statute is rarely going to be met. If Mother had not stated directly that she was not going to make the children go and made any show of attempting to return them (or sent them to school) she almost certainly would have avoided charges or at least the conviction.
3. Involvement of the police here came with (more) conflict and trauma for these children, suggesting that this a remedy that should very rarely be sought even where it might be successful (although, without more of the facts, it is difficult to know if leaving the children in Mother’s custody and waiting for the family court to force a return might have made return more difficult by further cementing their refusal).
4. Under the right (very rare and sad) facts, however, law enforcement may be one tool to coerce compliance with an order or return of children.
The Defendant (“Mother” in keeping with the traditions and purpose of this divorce law blog) had four children, R, L, T and S, with her ex-husband (“Father”). They had initially shared custody of the four children with Father having visitation on Wednesday evenings and every other weekend. Thereafter, Mother’s teenage son from a prior relationship was charged with sexual assault and the four children went to live with their Father. Father had sole legal and physical custody of the children and Mother had visitation rights.
The children were at Mother’s home in Glastonbury for visitation over Memorial Day weekend in 2015. Their ages then ranged between nine and thirteen. R had been staying with Mother for several months, following a physical incident between him and Father, in which the Norwalk P.D. and DCF had been involved.
At the end of Memorial Day weekend, the children decided they did not want to go home with Father. One of the children sent emails to Father saying she did not want to return to his home and wanted to stay with Mother. Pursuant to the custody and parenting orders, Father went to pick up the children at Mother’s house on Memorial Day. Mother came out and told Father she was not sending the children out, that they did not want to come out, and she was going to do what they wanted to do. Father went directly to the Glastonbury P.D. and they performed a welfare check. After speaking with each child, GPD determined that the children were fine, and encouraged resolving the matters in the family court.
Father returned home and contacted the children’s school resource officer of the Norwalk P.D. regarding the children’s refusal to return home. A few days later, NPD called Mother to ask why the children had not been returned. Mother informed NPD that she was “not going to make” the children return to their father, and that she “won’t make the children come out …” NPD informed Mother that she could be in trouble if the children did not return to school. Mother agreed to return them to school and NPD agreed not to seek a warrant for Mother’s arrest. The children continued to be absent from school and NPD contacted Mother again, at which time Mother said she would not return the children to school. NPD obtained an arrest warrant on one charge of custodial interference in the second degree and contacted DCF.
On 6/2/15, GPD executed the arrest warrant at Mother’s home and she was taken into custody. The police were unsuccessful in persuading the children to go with their father and they were remanded to DCF for a ninety-six hour hold, at which time Mother’s Aunt was granted temporary custody. The children were then placed with their maternal grandmother for several months and finally thereafter reunited with Father.
Mother was charged with four counts of custodial interference in the second degree, one count for each child, but ultimately the state dropped the charge as to R and proceeded on the three counts for the other children. The charge for count one (and similar for the other charges) read:
“[O]n or about May 25, 2015 [Memorial Day], at approximately 7:30 [p.m.] . . . [Mother] did . . . hold and keep for a protracted period and otherwise refused to return a child, to wit: [L], who was less than sixteen years old, to such child’s lawful custodian, to wit: [the father] . . . after a request by such custodian for the return of such child, knowing that she had no legal right to do so, in violation of . . . § 53a-98 (a) (3).”
The state’s theory of the case focused on Mother’s alleged refusal to return the children to Father. Mother was found guilty on all three counts and sentenced to a total effective term of three years of imprisonment, execution suspended for ninety days, three years of probation, and a $1,500 fine.
Mother appealed and argued that § 53a-98 (a) (3) was unconstitutionally vague as applied to her and the evidence was insufficient to support her conviction. The Appellate Court affirmed the judgment of conviction.
Mother’s petition for certification to the Supreme Court was granted as to two questions: (1) Did the Appellate Court incorrectly conclude that § 53a-98 (a) (3) was not unconstitutionally vague as applied to the defendant, and (2) did the Appellate Court incorrectly conclude that the evidence presented was sufficient to prove that the defendant ‘otherwise refused to return’ her children?
Mother argued that the statute failed to define what it means for someone to “otherwise [refuse] to return a child” to the lawful custodian, and therefore, under these facts, it was impossible for Mother to know that her failure to force the children to return could amount to that statutory standard. Mother further argued that the vagueness of the statute impermissibly delegated resolution of “refuses to return” to police officers, judges and juries on a subjective basis, making it subject to arbitrary and discriminatory enforcement.
The Supreme Court applied plenary review to the potential unconstitutional vagueness of a statute. The Supreme Court concluded that an individual is required to use efforts commensurate with the situation to satisfy the statutory requirements of § 53a-98. Such efforts would vary based on such factors as the age of the child and relationship with the individual. A very young child may be compelled by force. For an older child, “there may be fewer coercive measures at their disposal, beyond verbal commands, but there is still an obligation to do something to effectuate the return of the child.” The successful return may not be necessary, but here, Mother took no steps to return the child, which made this an easier affirmation. The fact that mother said “she wasn’t sending the children out …” and “she was going to do what the children wanted to do …” demonstrated Mother took no affirmative action.
The Supreme Court made short work of the argument regarding impermissible delegation based on vagueness, given its finding that the statute had a clear core meaning within which Mother’s conduct fell. The Supreme Court noted that the fact that GPD and NPD took different approaches does not demonstrate arbitrary or discriminatory enforcement, but the exercise of discretion.
Finally, the Supreme Court found sufficient evidence to support the conviction in Mother’s own statements. Irrespective of the children’s ultimate own refusal to go with Father, Mother “refused to do anything but follow the will of her children.”
The conviction was affirmed.