We’ve seen it before in other Family Abduction Cases, the parental kidnapper’s motion to use the “affirmative”, “competing harms” or “necessity” defense is denied. In the case of the State of New Hampshire vs. Genevieve Kelley, the court should rule this week on this critical motion. In cases like this, the critical issue is what actions did Genevieve Kelley need to take after kidnapping Mary Nunes. During her 10 years on the lam, did she need to: 1) Open a case in the New Hampshire Family Court that had jurisdiction over the pending custody issues; 2) Notify the District Attorney’s to work herself back into the New Hampshire legal system; 3) Open a case in another New Hampshire Court.
Apparently as New Hampshire Prosector John G. McCormick has put forth the State’s position that the New Hampshire law is clear:
“Evidence of good faith shall include but shall not be limited to the filing of a nonfrivolous petition documenting such danger and seeking to modify the custody degree in a court of competent jurisdiction within this state.” RSA 633:4, III
This specific law was no doubt put into place to prevent custodial-embattled parents from venue or forum-shopping. If parent’s didn’t like a custody ruling in their state, they couldn’t open a case in another state, county or country. Once the custody case was opened in New Hampshire, it stays in New Hampshire until so ordered.
So under this argument, the Affirmative Defense should NOT apply. It doesn’t appear that Genevieve Kelley showed any “good faith” effort and exhausted her legal alternatives before leaving the state. As John G. McCormick astutely point out: “The statutory scheme stated in RSA 633:4 is clear. It is intended to redress the wrong inherent situations where one parent takes a child from the other parent where the deprived parent has lawful physical custody or physical custody rights with the intent to detain or conceal the child from the deprived parent.”
Editors Note: We sincerely hope that the judge in this case won’t let defense attorney Alan Rosenfeld make make a mockery of New Hampshire’s Family Law and Child Protective Services Systems. A custodial-embattled has a number of legal alternatives before committing one of the most horrific crimes against a minor. New Hampshire’s court system should not be a forum for this type of public protest. If Genevieve Kelley had concerns back in 2004, why didn’t she simply contact Alan Rosenfeld? That’s when Colorado Protective Parent Attorney Alan Rosenfeld should have flown to New Hampshire and litigated this case. Instead Genevieve and Scott Kelley flew to Denver, Colorado and brought Mary Nunes to even more doctors to be evaluated (there was already an evaluation in Maine ordered by the New Hampshire Court). She’s just minutes from Protective Parent Attorney Rosenfeld’s Office, yet she doesn’t appear to have hired or spoken to him (at least not yet). Instead, she goes on the lam. And 10 years later, she turns herself in and keeps Mary Nunes in hiding.
This situation is disgraceful. We hope the New Hampshire Judge does not allow this Affirmative Defense.