Speaking of Ex's
Protection from Abuse Orders
(PFA)
August 1, 1999 - Interference with Custody
Mark, the Defendant, had picked up the children on July 30 for his normal weekend visitation. On August 1st, he refused to return the children to Pamela, the Plaintiff. Mark had told Pamela that he was due to keep the children for a 30 day visitation and that he was not going to return them. The court order states that he was to receive 30 days during the summer months with a 30 day prior notification to the Custodial parent.
School began on August 4th, 1999. Mark's actions were in violation of the court order and a Police report (#19990650) was filed for "Interference of Custody", State Code/Local Ordinance 13A-6-45. My Lawyer, Bo Burke, told me that pressing "Interference with Custody" charges would only make the court think that I was "trying to use the system" against my ex to gain custody. He failed to file anything with the Court.
My police report of "Interference with Custody" was filed on August 1st, 1999. My ex filed a "Modification of Custody" on August 6th, 1999. In effect, for five days my ex had "legally" kidnapped our children. I spoke with the Shelby County District Attorney about filing kidnapping charges for the five days during which Mark had withheld the children from me, the Custodial parent, while he filed a Petition to Modify Custody. The Shelby County District Attorney, Mr. Hess, stated:
"Kidnapping is a felony. He'll get ten years. I won't prosecute him for that. You don't want to keep him away from the kids that long, do you"?
The Assistant District Attorney, Barry Page, did investigate the matter of interference with custody. The following is his letter to the Plaintiff (verbatim):
"Dear Ms. Smith,
I am writing concerning the Shelby County Sheriff's Office incident/offense report you brought me last week. The report concerns an interference of custody allegation against Mark Smith on August 1 1999. From our conversation it is my understanding that Mark Smith is your ex-husband and the children involved in this incident is a product of your former marriage to mr. Smith. Further, it is mu understanding that there had been a custody dispute prior to this incident in which you were awarded custody, and custody issues have continued subsequent to this incident.
The interference with custody statute (Alabama Code 13A-6-45) states that "a person does not commit a crime under this section if the actor's sole purpose is to assume lawful control of the child." Kennedy v. State (640 so. 2d 22) states "...it is clear that the legislature intended the offense of interference with custody to be a crime requiring specific intent."
Based on the laws of this state and my understanding of the facts of this incident, our office cannot bring and interference with custody charge against Mark A. Smith for the August 1, 1999 incident."
August 4th, 2000 - Assault on Plaintiff in front of small child of the Parties.
Mark took the children and said he will not return them. I called my lawyer and he says we'll go to court. I went by Mark's home to check on the kids because their paternal great-grandmother had died. I had my pregnant cousin and her two boys with me. Mark wasn't going to let me see the kids but they came running down anyway. Tyler got in the car to go home, Cody ran for her shoes so she could go to. They held her inside and would not let her out of Jackies room. She was standing at the window crying. Mark took that "stance", the one he took when the "beatings" were about to begin, and headed for Tyler. I tried to stop him from yanking Tyler out of the car. Mark shoved me up against the car, bruising my arm, and then turned towards me. I jumped in the car and tried to leave. He came in the car on top of me, hit me in the face with his elbow, breaking my sunglasses, and took the car keys from the ignition. He then slammed the car door into my face when I tried to get out of the car.
The Police came, offered to call me an ambulance, but failed to arrest Mark as per the Violence Against Women's Act. I had to get a protection order. It took me three days to get Cody back. She missed two days of school because he wouldn't let her go. After I swore out a warrant, the Police arrested Mark on charges of assault. My ex father-in-law, and the Shelby County Police, called me and told me to go get my daughter. She was being kept at the home of my ex-sister-in-law and ex-brother-in-law. When I went to pick her up, my ex-brother-in-law, Eric (the Minister), screamed at me in front of my daughter as if this was all my fault.
In December of 1999, Judge Jackson acquitted Mark of assault in the Shelby County Criminal Court. He stated "It is obvious that something happened, but the State failed to prove Intent." In effect he ruled that Mark had "accidentally hit her...three times".
The District Attorney, Mr. Hess, had failed to collect all of the police reports from the County Clerk's Office. The defendant's case relied heavily on the fact that the Police did not arrest Mark on the day of the assault as per the Violence Against Women's Act, a question that the Shelby County Police Department has yet to answer for the Plaintiff. The Defendant also stated that he had not had visitation with his children as per the custody order and that it was his 30 days. On the second police report labeled "Domestic Disturbance/Violation of Court Order" (Case #199906106), the one that the DA failed to obtain, the Defendant clearly states:
"(He) had held the children past his 30 days. (He) said he gave her (Pamela) a certified letter to extend his time with the children, she said she refused the letter of extension."
The First and Second Protection from Abuse Orders
against the Defendant, Mark Smith
Note: The original Protection From Abuse Order issued on August 1999 was continually in place but modified until August 2001. The "amount" of PFA's this documentary refers to indicates each time this case was listed on the St. Clair County Docket for Judge Hereford.
1. August 6th - St. Clair County, Judge Hereford. CV99-D165
The first of four Protection from Abuse Orders against the Defendant Mark Smith is put in place and filed at the St. Clair County Clerk's Office on August 10, 1999. It clearly states "No Visitation". The words "Finding of Domestic/Family Violence" are never entered into the court records, nor is the Defendant ordered to attend Anger Management classes.
On Part 3 of 3 of the Petition for protection from abuse, the Plaintiff has clearly checked:
XI - Relief requested for final hearing:
In addition to the relief requested above "VIII Ex Parte Requested", I request the following relief:
Visitation - DENY
Visitation - REQUIRE SUPERVISION BY A THIRD PARTY
Specify the following:Request counseling for children and myself to be completed as well as for their Dad.
2. August 13/18, 1999 - The Defendants Attorney tells Judge Hereford that there is currently a "custody dispute" filed with Shelby County. Judge Hereford issues a new PFA removing the "No Visitation" stipulation.
The Alabama Code 1975, Section -30-5-4 clearly states:
(c) The remedies and procedures provided in this chapter are in addition to and not in lieu of any other available civil or criminal remedies. Plaintiff's shall not be barred from relief under this chapter because of other pending proceedings or existing judgments.
(d) The court shall not delay granting relief because of the existence of a pending action between the parties.
(e) Relief shall be available under this chapter without regard to whether the plaintiff has initiated divorce proceedings or sought other legal remedies.
(f) If child custody, visitation, or support have already been adjudicated, the terms of a previous court order may be incorporated into a protection order. Visitation arrangements specified in an existing order may be modified in a protection order for the purpose of preventing further abuse.
The 3rd, 4th, 5th, and 6th Protection from Abuse Orders
3. 12-7-99
The Protection from Abuse Order remains in effect. Case is continued for further hearing to February 1, 2000 at 9am.
4. 2 -1 -2000
The Protection from Abuse Order remains in effect. This case is hereby placed on the Administrative Docket pending results of Custody hearing in Shelby County.
(Custody hearing was held in Shelby County on 5 - 30 - 2000)
7-20-2000
Case dismissed.
7-24-2000
Motion to reinstate PFA
5. 8-17-2000
PFA Reinstated and held for one year.
6. Plaintiff re-applied for the PFA. The Clerk entered the motion as "Letters, etc.". When we realized her mistake, she notified the Judge and he issued a new PFA. The issuance for the new Protection From Abuse Order due to the clerical error gave the Defendant's Lawyers the opportunity to have the order vacated.
The following is an excerpt from the letter on file at the St. Clair County Clerk's Ofice which the Plaintiff sent to Judge Hereford:
In October of 2001 I lost a Protection from Abuse Order that was issued in August of 2000 due to a clerical error. I had applied for an extension of that PFA in a timely manner but the clerk entered my motion as "Letters, etc.." You did not see that request until it was too late to extend that PFA. You issued a new PFA which gave my ex spouse the opportunity to have it vacated.
I submitted a motion to reinstate the standing PFA and due to the clerical error you issued a new one, opening the door for my ex to have it vacated. My ex's lawyer had stated that the reason he wanted the PFA vacated was as follows(In the order he stated):
1. "The man can't carry his gun, Sir."
Mark Smith, the Defendant, has never lost his gun permit and has never stopped carrying his guns.
2. The PFA offers a "rebuttal presumption" in the ongoing custody case and that Judge ruled that he did not find any Domestic Violence in this case.
Judge Dan Reeves, in the final custody order, stated that both parents will provide their physical address and phone number "Provided, however, that neither parent utilize that information to harass or threaten the other" (See attached Custody Order, page two)
Three months later, forgetting his words, Judge Dan Reeves ruled that he did not make a finding of domestic violence. With the *third of four PFA's issued in place during the custody hearing, and with testimony and photographs, the PFA offered no "rebuttal presumption" in the child custody case.
* This should have read "fourth of six" PFA Orders
Documented Harassment
by a Paternal Family Member
on the Plaintiff.
August 6, 2000 - The Defendant's Father
The Defendants father, A.J Smith, came to pick up the children at the Plaintiff's place of employment. He remained in his car and the Plaintiff walked up to his window to talk to him as the children got into the vehicle. A.J then began to yell at the Plaintiff, Pamela, about child support. He also stated that he would not pay her the Court Ordered thirty thousand dollars for her part in the marital residence until she had moved the renters out of the marital residence. He then punched Pamela on the forearm twice before she could back away from the vehicle. He then drove away with the children in the vehicle yelling at Pamela that he didn't care what the court does. A Police report for Harassment (13A-11-8) was filed (case #200001850) with the Trussville Police Department, Jefferson County..
April 3, 2001 - Case Action Summary Number MC01-00297 against Andrew Jackson Smith, the Defendants father, states that the Defendant shall have no further criminal activity to victim until April 2, 2002, especially similar to the present charge (of DV 3rd/Harassment). Case to be dismissed if no violation.
(PFA)
August 1, 1999 - Interference with Custody
Mark, the Defendant, had picked up the children on July 30 for his normal weekend visitation. On August 1st, he refused to return the children to Pamela, the Plaintiff. Mark had told Pamela that he was due to keep the children for a 30 day visitation and that he was not going to return them. The court order states that he was to receive 30 days during the summer months with a 30 day prior notification to the Custodial parent.
School began on August 4th, 1999. Mark's actions were in violation of the court order and a Police report (#19990650) was filed for "Interference of Custody", State Code/Local Ordinance 13A-6-45. My Lawyer, Bo Burke, told me that pressing "Interference with Custody" charges would only make the court think that I was "trying to use the system" against my ex to gain custody. He failed to file anything with the Court.
My police report of "Interference with Custody" was filed on August 1st, 1999. My ex filed a "Modification of Custody" on August 6th, 1999. In effect, for five days my ex had "legally" kidnapped our children. I spoke with the Shelby County District Attorney about filing kidnapping charges for the five days during which Mark had withheld the children from me, the Custodial parent, while he filed a Petition to Modify Custody. The Shelby County District Attorney, Mr. Hess, stated:
"Kidnapping is a felony. He'll get ten years. I won't prosecute him for that. You don't want to keep him away from the kids that long, do you"?
The Assistant District Attorney, Barry Page, did investigate the matter of interference with custody. The following is his letter to the Plaintiff (verbatim):
"Dear Ms. Smith,
I am writing concerning the Shelby County Sheriff's Office incident/offense report you brought me last week. The report concerns an interference of custody allegation against Mark Smith on August 1 1999. From our conversation it is my understanding that Mark Smith is your ex-husband and the children involved in this incident is a product of your former marriage to mr. Smith. Further, it is mu understanding that there had been a custody dispute prior to this incident in which you were awarded custody, and custody issues have continued subsequent to this incident.
The interference with custody statute (Alabama Code 13A-6-45) states that "a person does not commit a crime under this section if the actor's sole purpose is to assume lawful control of the child." Kennedy v. State (640 so. 2d 22) states "...it is clear that the legislature intended the offense of interference with custody to be a crime requiring specific intent."
Based on the laws of this state and my understanding of the facts of this incident, our office cannot bring and interference with custody charge against Mark A. Smith for the August 1, 1999 incident."
August 4th, 2000 - Assault on Plaintiff in front of small child of the Parties.
Mark took the children and said he will not return them. I called my lawyer and he says we'll go to court. I went by Mark's home to check on the kids because their paternal great-grandmother had died. I had my pregnant cousin and her two boys with me. Mark wasn't going to let me see the kids but they came running down anyway. Tyler got in the car to go home, Cody ran for her shoes so she could go to. They held her inside and would not let her out of Jackies room. She was standing at the window crying. Mark took that "stance", the one he took when the "beatings" were about to begin, and headed for Tyler. I tried to stop him from yanking Tyler out of the car. Mark shoved me up against the car, bruising my arm, and then turned towards me. I jumped in the car and tried to leave. He came in the car on top of me, hit me in the face with his elbow, breaking my sunglasses, and took the car keys from the ignition. He then slammed the car door into my face when I tried to get out of the car.
The Police came, offered to call me an ambulance, but failed to arrest Mark as per the Violence Against Women's Act. I had to get a protection order. It took me three days to get Cody back. She missed two days of school because he wouldn't let her go. After I swore out a warrant, the Police arrested Mark on charges of assault. My ex father-in-law, and the Shelby County Police, called me and told me to go get my daughter. She was being kept at the home of my ex-sister-in-law and ex-brother-in-law. When I went to pick her up, my ex-brother-in-law, Eric (the Minister), screamed at me in front of my daughter as if this was all my fault.
In December of 1999, Judge Jackson acquitted Mark of assault in the Shelby County Criminal Court. He stated "It is obvious that something happened, but the State failed to prove Intent." In effect he ruled that Mark had "accidentally hit her...three times".
The District Attorney, Mr. Hess, had failed to collect all of the police reports from the County Clerk's Office. The defendant's case relied heavily on the fact that the Police did not arrest Mark on the day of the assault as per the Violence Against Women's Act, a question that the Shelby County Police Department has yet to answer for the Plaintiff. The Defendant also stated that he had not had visitation with his children as per the custody order and that it was his 30 days. On the second police report labeled "Domestic Disturbance/Violation of Court Order" (Case #199906106), the one that the DA failed to obtain, the Defendant clearly states:
"(He) had held the children past his 30 days. (He) said he gave her (Pamela) a certified letter to extend his time with the children, she said she refused the letter of extension."
The First and Second Protection from Abuse Orders
against the Defendant, Mark Smith
Note: The original Protection From Abuse Order issued on August 1999 was continually in place but modified until August 2001. The "amount" of PFA's this documentary refers to indicates each time this case was listed on the St. Clair County Docket for Judge Hereford.
1. August 6th - St. Clair County, Judge Hereford. CV99-D165
The first of four Protection from Abuse Orders against the Defendant Mark Smith is put in place and filed at the St. Clair County Clerk's Office on August 10, 1999. It clearly states "No Visitation". The words "Finding of Domestic/Family Violence" are never entered into the court records, nor is the Defendant ordered to attend Anger Management classes.
On Part 3 of 3 of the Petition for protection from abuse, the Plaintiff has clearly checked:
XI - Relief requested for final hearing:
In addition to the relief requested above "VIII Ex Parte Requested", I request the following relief:
Visitation - DENY
Visitation - REQUIRE SUPERVISION BY A THIRD PARTY
Specify the following:Request counseling for children and myself to be completed as well as for their Dad.
2. August 13/18, 1999 - The Defendants Attorney tells Judge Hereford that there is currently a "custody dispute" filed with Shelby County. Judge Hereford issues a new PFA removing the "No Visitation" stipulation.
The Alabama Code 1975, Section -30-5-4 clearly states:
(c) The remedies and procedures provided in this chapter are in addition to and not in lieu of any other available civil or criminal remedies. Plaintiff's shall not be barred from relief under this chapter because of other pending proceedings or existing judgments.
(d) The court shall not delay granting relief because of the existence of a pending action between the parties.
(e) Relief shall be available under this chapter without regard to whether the plaintiff has initiated divorce proceedings or sought other legal remedies.
(f) If child custody, visitation, or support have already been adjudicated, the terms of a previous court order may be incorporated into a protection order. Visitation arrangements specified in an existing order may be modified in a protection order for the purpose of preventing further abuse.
The 3rd, 4th, 5th, and 6th Protection from Abuse Orders
3. 12-7-99
The Protection from Abuse Order remains in effect. Case is continued for further hearing to February 1, 2000 at 9am.
4. 2 -1 -2000
The Protection from Abuse Order remains in effect. This case is hereby placed on the Administrative Docket pending results of Custody hearing in Shelby County.
(Custody hearing was held in Shelby County on 5 - 30 - 2000)
7-20-2000
Case dismissed.
7-24-2000
Motion to reinstate PFA
5. 8-17-2000
PFA Reinstated and held for one year.
6. Plaintiff re-applied for the PFA. The Clerk entered the motion as "Letters, etc.". When we realized her mistake, she notified the Judge and he issued a new PFA. The issuance for the new Protection From Abuse Order due to the clerical error gave the Defendant's Lawyers the opportunity to have the order vacated.
The following is an excerpt from the letter on file at the St. Clair County Clerk's Ofice which the Plaintiff sent to Judge Hereford:
In October of 2001 I lost a Protection from Abuse Order that was issued in August of 2000 due to a clerical error. I had applied for an extension of that PFA in a timely manner but the clerk entered my motion as "Letters, etc.." You did not see that request until it was too late to extend that PFA. You issued a new PFA which gave my ex spouse the opportunity to have it vacated.
I submitted a motion to reinstate the standing PFA and due to the clerical error you issued a new one, opening the door for my ex to have it vacated. My ex's lawyer had stated that the reason he wanted the PFA vacated was as follows(In the order he stated):
1. "The man can't carry his gun, Sir."
Mark Smith, the Defendant, has never lost his gun permit and has never stopped carrying his guns.
2. The PFA offers a "rebuttal presumption" in the ongoing custody case and that Judge ruled that he did not find any Domestic Violence in this case.
Judge Dan Reeves, in the final custody order, stated that both parents will provide their physical address and phone number "Provided, however, that neither parent utilize that information to harass or threaten the other" (See attached Custody Order, page two)
Three months later, forgetting his words, Judge Dan Reeves ruled that he did not make a finding of domestic violence. With the *third of four PFA's issued in place during the custody hearing, and with testimony and photographs, the PFA offered no "rebuttal presumption" in the child custody case.
* This should have read "fourth of six" PFA Orders
Documented Harassment
by a Paternal Family Member
on the Plaintiff.
August 6, 2000 - The Defendant's Father
The Defendants father, A.J Smith, came to pick up the children at the Plaintiff's place of employment. He remained in his car and the Plaintiff walked up to his window to talk to him as the children got into the vehicle. A.J then began to yell at the Plaintiff, Pamela, about child support. He also stated that he would not pay her the Court Ordered thirty thousand dollars for her part in the marital residence until she had moved the renters out of the marital residence. He then punched Pamela on the forearm twice before she could back away from the vehicle. He then drove away with the children in the vehicle yelling at Pamela that he didn't care what the court does. A Police report for Harassment (13A-11-8) was filed (case #200001850) with the Trussville Police Department, Jefferson County..
April 3, 2001 - Case Action Summary Number MC01-00297 against Andrew Jackson Smith, the Defendants father, states that the Defendant shall have no further criminal activity to victim until April 2, 2002, especially similar to the present charge (of DV 3rd/Harassment). Case to be dismissed if no violation.