Howard

Does a reconciliation by a husband and wife cancel a child custody order which had been granted as part of an interlocutory decree of dissolution?

I.

In July 1978, after six years of marriage, Gene and Pamela Howard obtained an interlocutory judgment of dissolution, which gave Pamela custody of the couple’s two children. Gene was given visitation rights under the decree.

One month later, Gene moved back in with Pamela and their two children, and continued living with them for almost two years. During this period, Pamela and Gene resumed marital relations, and signed rental, checking and credit agreements as husband and wife. Also during this time, neither party attempted to enforce the provisions of the interlocutory decree, which, inter alia, called for the division of community property and Gene’s payment of child support to Pamela.

In June 1980, Gene went to Colorado and stayed for several weeks. He testified that he went to attend his brother’s funeral and to be with his ailing *855 father. Pamela believed that Gene’s departure reflected the couple’s final split-up.

Sometime in July 1980, Gene telephoned Pamela and threatened to take the children without her…

I concur. I write separately to address an important issue which was the original reason why this court granted a hearing in this case. The issue is whether an accused’s honest, good faith, but mistaken belief that there has been a reconciliation is a defense to a violation of Penal Code section 278.5. 1 Resolution of this question turns on whether section 278.5, subdivision (a) describes a specific intent crime and if it does, what specific intent is required.

Section 278.5, subdivision (a) provided in pertinent part; “Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian, and every person who has custody of a child pursuant to an order, judgment or decree of any court which grants another person rights to custody or visitation of such child, and who detains or conceals such child with the intent to deprive the other person of such right to custody or visitation shall be punished by *860 imprisonment in the state prison . . . .” (Italics added.) As is evident from the italicized language, the statute clearly contained a specific intent element. (See People v. Lortz (1982) 137…

I dissent.

To reach their conclusion the majority assume there was a reconciliation, and that such reconciliation would automatically “cancel” the previous custody order of the court. They misread the testimony and the facts impliedly found by the jury, and they are in error on the law.

Although defendant claimed he and his ex-wife had reconciled, she—the mother of the children—admitted cohabitation and an attempt at reconciling, but testified the reconciliation failed. At most there was an attempted reconciliation. As the Chief Justice wrote in In re Marriage of Modnick (1983) 33 Cal.3d 897, 912 [ 191 Cal.Rptr. 629 , 663 P.2d 187 ], “Mere cohabitation after entry of the interlocutory decree, even for a long period of time, does not establish that the parties have reconciled as a matter of law.” In short, it takes two to reconcile.

The record discloses that after the interlocutory decree was entered, defendant moved into his ex-wife’s home and for nearly a year they tried to adjust their marital differences. He was away from this temporarily reunited home for a considerable period of that time because of family illness in Colorado. Ultimately the attempted reconciliation…

Does a reconciliation by a husband and wife cancel a child custody order which had been granted as part of an interlocutory decree of dissolution?

In July 1978, after six years of marriage, Gene and Pamela Howard obtained an interlocutory judgment of dissolution, which gave Pamela custody of the couple's two children. Gene was given visitation rights under the decree.

One month later, Gene moved back in with Pamela and their two children, and continued living with them for almost two years. During this period, Pamela and Gene resumed marital relations, and signed rental, checking and credit agreements as husband and wife. Also during this time, neither party attempted to enforce the provisions of the interlocutory decree, which, inter alia, called for the division of community property and Gene's payment of child support to Pamela.

In June 1980, Gene went to Colorado and stayed for several weeks. He testified that he went to attend his brother's funeral and to be with his ailing father. Pamela believed that Gene's departure reflected the couple's final split-up.

Sometime in July 1980, Gene telephoned Pamela and threatened to take the children without her…