Metropolitan News-Enterprise


Tuesday, November 21, 2006


Page 3


S.C.: Father Who Removed Children From Mother Need Only Raise Reasonable Doubt for Good Faith Defense


By a MetNews Staff Writer


A parent who allegedly deprived the other parent of the custody of their children was not required to prove a defense of good faith by a preponderance of the evidence, but only to raise a reasonable doubt, the state Supreme Court unanimously ruled yesterday.

Affirming the Third District Court of Appeal’s judgment, the justices said Yolo Superior Court Judge Michael W. Sweet erroneously applied a preponderance standard to William Neidinger, who claimed he took his children from his wife based on his belief that doing so was necessary for their physical and emotional well being.

In 2002, Neidinger was charged with two counts of maliciously depriving his wife of the custody of their two children in violation of Penal Code Sec. 278.5.

Neidinger and his wife, who wed in 1998 and had a tumultuous relationship involving numerous physical altercations, legally separated and were granted joint legal custody of their son and daughter.

The wife, who had moved with their children to West Sacramento and obtained a restraining order against Neidinger, was awarded primary physical custody. Neidinger was given weekend visitation rights.

At trial, he testified that as he visited his children frequently, he saw them regress into a lethargic and detached state and became concerned about their well-being. Though he made over 20 complaints to child protective services, he said, he did not receive a satisfactory response.

Having moved to Nevada, Neidinger sought to initiate new proceedings in that state and filed an application in a Nevada court for a domestic violence protection order.

On March 9, following an alleged incident several days earlier that threatened the children’s well-being, Neidinger picked them up from West Sacramento for his regular visitation with the intent to remove them from their mother’s care.

After allegedly attempting unsuccessfully to inform the West Sacramento police of his plans to remove the children, Neidinger told their mother through third parties that he would not return the children since he had moved to Nevada, which would be a better place for them.

He said he was fed up with the California court system and would not return the youngsters, an investigating officer testified.

Neidinger was ultimately arrested and charged under Sec. 278.5, which provides for the punishment of a person who “takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation.”

At trial, he raised the Sec. 278.7(a) defense that he removed the children “with good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm.” Sweet instructed jurors that Neidinger had the burden of proving by a preponderance of the evidence the facts needed to establish this defense.

The jury found him guilty on both counts and Sweet placed him on four years’ probation.

On appeal, Neidinger argued Sweet’s jury instruction as to the good faith defense was erroneous.

The Court of Appeal held the instruction was proper but that Sweet prejudicially erred in failing to clarify the relationship between the good faith defense and the element of malice “so that it was clear to the jury that, to the extent the evidence regarding the good faith defense also showed that defendant acted without malice, he need raise only a reasonable doubt as to that element of the offense.”

While agreeing the trial judge committed prejudicial error, Justice Ming W. Chin, writing for the Supreme Court, said the error was in the instruction itself.

“[A] defendant need only raise a reasonable doubt whether the facts underlying the section 278.7(a) defense exist,” he wrote.

While Neidinger clearly had the burden of presenting such facts—because they were “peculiarly within defendant’s knowledge, and it would be relatively difficult or inconvenience for the prosecution to prove their nonexistence”—the burden of proof was not maximal, Chin said.

“[T]he more serious error that we have found—placing an erroneously high burden on defendant to prove the section 278.7(a) defense—was prejudicial,” the justice concluded.

The case is People v. Neidinger, 06 S.O.S. 5589.


Copyright 2006, Metropolitan News Company