Gerlach v. State

699 P.2d 358 (1985)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Robert Faro was originally married to D's half-sister, Gail. They were divorced and he was awarded custody of their four children. Faro married D, and they had one child, Angela. D and Faro separated and commenced divorce proceedings. Faro and D entered into an agreement under which Faro had temporary custody of Angela and D had limited visitation rights. The parties were interviewed by the superior court's custody investigator and by a court-appointed psychologist, Dr. James Parsons. Dr. Parsons concluded that both parties were fit custodians for Angela but that permanent custody should be placed with D. After evaluating the psychologist's report, the parties and counsel met with the custody investigator and entered into a written stipulation that Faro would continue to have temporary custody of Angela pending the final decree of divorce, but that D's visitation rights would be expanded. D obtained a court restraining order preventing Faro from taking Angela out of state. Three weeks after the modified custody agreement was signed D picked up Angela from her babysitter and flew with her to the State of Washington. D hid Angela from Faro for over a year. D made an offer of proof in support of her defense of necessity. D would testify that she believed that Faro was not properly caring for Angela because Angela was suffering from a vaginal infection and appeared dirty and unkempt. D knew that Faro's children by his former marriage were slapped, beaten, and verbally abused after visits to their mother. D had little faith in judicial proceedings as a means for resolving custody disputes. She knew that Faro had more money than she had, and feared that she would run out of funds before the custody dispute was resolved. D was particularly concerned that Judge Carlson had authorized the temporary custody agreement as he had been the judge who ruled in Faro's favor in the earlier litigation. Bobby Faro, D's nephew and Faro's son by his earlier marriage (a fifteen-year-old boy suffering from muscular dystrophy, confined to a wheelchair), would testify that Faro had disciplined his children by beating them with a belt and slapping them, often for things that were not really their fault. Bobby would also testify that Faro slapped Angela when she came home from a visit with D. D's sister Gail would testify that after her own custody dispute with Faro, he abused their children when they returned home from visits with her. Dr. Parsons would testify that he saw both Faro and Gerlach at the time of the divorce and recommended that Angela remain with D. The judge entered a protective order precluding D from raising the issue of necessity at trial. D was convicted and appealed.