PETITION FOR WRIT OF MANDATE TO STAY PROCEEDINGS
UNTIL AN INVESTIGATION AS PER FAMILY CODE 3118 IS COMPLETED
A. NATURE OF THE PROCEEDING
Minor DM, now 13 years old, is reporting very serious, long-term sexual, physical and emotional abuse by his father, Eric Moelter. Family Code Section 3118 is mandatory, not discretionary, and must be followed when there is a serious allegation of child sexual abuse. The Court has no discretion to act contrary to the statute. However, the Trial court has stated it will give custody to the alleged abuser on September 11, 2009, despite the fact that it has not complied with Section 3118.
This Petition for Writ of Mandate requests that this Court issue an immediate Stay of Proceedings before the custody hearing set for Sept. 11th and that supervised visitation between the alleged abuser and three minor children be reinstated. This Stay should only expire at such time as FC 3118 is complied with and there is a full and proper evidentiary hearing on the abuse matter with testimony from the minors.
B. WHY RELIEF BY WRIT WITH STAY IS NECESSARY
This court should grant this petition with immediate stay of proceedings due to the irreparable nature of the injury which may occur if such relief is not granted. The alleged abuse is extremely serious and includes not only hundreds of incidents of sexual assaults in many places, but physical and emotional abuse and threats to kill Damon and Petitioner if he told anyone about the abuse. Damon has told many people about the abuse, so he may be in danger, not only of continuing assaults, but of being punished, or even killed, if custody is granted to his named abuser. Damon stated on September 3, 2009, that he would kill himself if he was made to go overnight with his father. The other children are also reporting the abuse. Damon is still saying that he is very afraid to be alone with his father, but his father may be granted custody on September 11, 2009.
WHEREFORE, a Writ of Mandamus, with an immediate Stay of proceedings, is the only adequate remedy.
A. NAME AND STATUS OF EACH PARTY
Cindy Dumas Petitioner, Mother
Hon. Lorna Alksne Respondent, Superior Court Judge
Eric Moelter Real Party in Interest, Father
Kurt and Leslie Leinbach Claimants (Guardians)
Gary Plavnik Minor’s Counsel for Damon Moelter
Dave Schulman Minor’s Counsel for Ryan Moelter
Tim Smith Minor’s Counsel for Evan Moelter
B. BACKGROUND AND PROCEDURAL HISTORY
Petitioner and Real Party in Interest, Eric Moelter, are the parents of the three minor children whose custody and best interest are the subject of the proceeding:
Damon, age 13, DOB 8/29/96
Ryan, age 15, DOB 2/6/94
Evan, age 17, DOB 9/5/96
Divorce was granted in August, 2002 in Hawaii, with Petitioner receiving sole physical custody and both parents sharing joint legal custody. Petitioner resided in San Diego with the children at the time of divorce and Moelter moved to San Diego in October, 2002, at which time regular visitation commenced every other weekend and Wednesday evenings.
Minor DM began reporting abuse by his father Feb. 23, 2003. The abuse was first reported to CPS, who interviewed the children, ordered supervised visits and referred the case to the police department. The detective ultimately decided that there was not enough evidence to prosecute, but placed MOELTER on the Child Abuse Central Index.
Domestic Violence Court Judge Hightower issued a TRO and continued it. The case was transferred to Family Court under Judge Michael Smyth. An evaluation was ordered to investigate the abuse, but did not meet the requirements of FC 3118. At the hearing on the abuse on Jan. 22, 2004, it was found that Petitioner had not met her burden of proof. Damon subsequently continued to report and show severe signs of abuse, but the court still did not order an evaluation according to FC 3118. Ryan also reported abuse. Petitioner was therefore forced to leave the jurisdiction on Nov. 5, 2004 to protect her children.
In 2007, the D.A. reviewed the case, dismissed all charges of abduction and assured Petitioner that if they returned to San Diego, the new family court judge would order a proper evaluation according to FC 3118 and have a hearing with testimony from the children.
Petitioner returned to San Diego with the children on Feb. 1, 2008, with the understanding that the new family court judge, Judge Lorna Alksne, would conduct an investigation according to FC 3118 and allow the children to testify. Petitioner was told by the court that the children would stay with guardians for two weeks while Damon reported the abuse.
The court appointed Dr. William Dess as evaluator, and Damon told him in detail about four years of abuse. However, the children were not returned to Petitioner. Dr. Dess’ report did not meet the requirements of FC 3118, specifically Section 3118 (b) 1-6. At the custody hearing on August 20, 2008, Dr. Dess was asked why he had not complied with FC 3118, but the Court stopped the line of questioning, stating that it was not the court’s intention to do a 3118 due to Res Judicata. [Exhibit A: p.44]
Another psychological examination was ordered at a hearing on September 30, 2008, which was done by Dr. Randy Robinson. Although the court stated, “Damon is to have full psychological testing in this case. I think that’s warranted in light of the evidence that the court has,” it was a brief two page report, which did not comply with any of the requirements of FC 3118. However, Dr. Robinson did state that Damon reported sexual contact with his father between the ages of 5 and 8, at which time he left with his mother. [Exhibit B: p.162]
A Request for Statement of Decision as to why Section 3118 had not been complied with was filed on October 10, 2008 [Exhibit C]. There was no response by the Court.
The children were ordered into reunification therapy with their father and he was granted partial legal custody. In sessions with the reunification therapist between October, 2008 and August, 2009, the children confronted their father about much of the abuse, which was later testified to by the psychologist, Dr. Breffni Barrett. Petitioner began conjoint sessions in February, 2009 at which Damon stated many times that he is afraid of being alone with his father. Dr. Barrett has confirmed that Damon is afraid of being alone with his father.
Petitioner filed an Ex parte Application for Stay of Custody on June 16, 2009 [Exhibit D]. It was denied and the hearing on the motion was continued to September 11, 2009, the same date as the custody hearing. The court stated it was unlikely to grant the request to do an investigation according to FC 3118.
As recently as Sept. 3, 2009, Damon again reported in a conjoint therapeutic session that he is very afraid to go alone or overnight with his father, was being heavily pressured to do so, but that he would kill himself if he was made to go. At that time, Petitioner decided to file a Writ of Mandate to attempt to stop the court from giving custody of the children to the father on
September 11, 2009 until a full investigation according to FC 3118 is done.
The guardians presently have legal and physical custody and father has partial legal custody and unsupervised visitation [Exhibit D]. Petitioner has no custody and is presently allowed allowed one supervised and one therapeutic visit a week.
C. ACTION OF TRIAL COURT
The trial court has erred in not complying with Family Code 3118 and having made findings about fitness to parent, custody and visitation without having done so. To the best of Petitioner’s knowledge there is no specific court order denying the investigation according to FC 3118. There are, however, many times in the course of the hearings since Jan. 31, 2008, in which it was stated that it was not necessary to follow Section 3118 and her requests were denied. The most recent denial [Exhibit E: p. 171, 172] is evidence of that and can be construed as an admission that it has not been and will not be done:
PETITIONER: Your Honor, I would like to clarify also why – when I filed the ex parte yesterday [for Motion to Stay] [Exhibit D], I was not allowed to give you the reasons why it was an emergency that the minimum requirements of the Family Code 3118 had not been [met] – I was not given a chance. Is there some reason that I was not given a chance to argue that yesterday?
THE COURT: There was nothing to put on the record yesterday, Ma’am. The court has ruled on that request 10, 15 times.
D. NECESSITY OF WRIT WITH STAY OF PROCEEDINGS
This is an urgent matter which cannot wait for the regular appeals process due to the irreparable nature of the injury which may occur if an immediate Stay of Proceedings is not issued. The alleged abuse is extremely serious and includes not only hundreds of incidents of sexual assaults in many places, but physical and emotional abuse and threats to kill Damon [Exhibit I: p. 265] if he told anyone about the abuse. Damon has told many people about the abuse, so he may be in danger, not only of continuing assaults, but of being punished or even killed by his named abuser if custody. Damon has consistently stated to the present day that the abuse occurred and that he is afraid to go overnight or alone with his father. He stated on September 3, 2009, at a conjoint session with Dr. Barrett that he would kill himself if made to go with his father.
The trial court is set to determine the Stay of Custody motion and custody on Sept. 11, 2009 without having complied with the mandatory statute, Family Code Section 3118. The court’s stated intent is to grant custody to the father. The Petitioner will not have time to do a regular appeal and the children may be endangered by being placed under the custody and control of an abuser.
Therefore, an immediate Stay of custody proceedings is necessary until the proper evaluation according to law is completed with a subsequent full evidentiary hearing.
WHEREFORE, Petitioner prays that this Court:
1. Issue an immediate Stay of Proceedings until an investigation according to Family Code Section 3118 is completed with a subsequent full and proper evidentiary hearing.
2. Issue a Peremptory Writ of Mandate ordering the trial court to complete an investigation according to FC 3118 and have a full and proper evidentiary hearing on the matter with minors’ testimony.
3. Issue an order that visits between the minors and the father be supervised until such time as the relief requested by this Writ has been granted.
4. Grant any further relief as this Court may deem just and proper.
September 8, 2009 ______________________________
Petitioner, Cindy Dumas