Mother Not Guilty of Kidnapping

October 27, 2001 permalink

A woman who abducted her own triplets and took them to Mexico has been found not guilty of kidnapping by a jury in Stratford Ontario. Here is the story on Yahoo recovered from the internet archives. This may reduce the authority of fathers, or increase the authority of parents.

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Friday October 26 4:59 PM EST

Stratford, Ont. jury acquits mother in abduction of eight-year-old triplets

LAURA CZEKAJ, Stratford Beacon-Herald

STRATFORD, Ont. (CP) - A stunned father trembled with disbelief Friday as a jury acquitted his ex-wife of fleeing Canada with their triplets in a bid to dodge a looming custody battle.

Carline Vandenelsen, charged with abducting the eight-year-old triplets last October, had pleaded not guilty by reason of necessity, saying she was acting in the best interests of her kids.

Delighted supporters and family members erupted in cheers and applause when they heard the verdict, then took turns embracing a relieved Vandenelsen as she wept with joy.

"I'm just elated that justice was served," she said of a verdict that had phones ringing madly at call-in radio and television shows across Ontario.

Vandenelsen said the jury vindicated her fears of the damage caused to children at the centre of custody disputes which often result in "mud-slinging" in family court.

"Power and politics and personal agendas don't belong there because children suffer," she said.

"We need to address real issues in a family court of law, and not necessarily the mud-slinging and who's the rightful parent - it's the rights of the children to be nurtured by both parents."

Craig Merkley, the children's father and for six years their primary custodian, was visibly shaken by the ruling, which came after nearly 12 hours of deliberation by the eight-man, four-woman jury.

"I think they just declared open season (for) anyone who wants to abduct their children," he said outside court.

Vandenelsen's international odyssey with Peter, Gray and Olivia Merkley began in October 2000, when the three kids were whisked away during a supervised day visit with their mother.

In evidence read to the jury, Peter Merkley described how he and his brother and sister were smuggled across borders in the trunk of a car.

More than three months later, police following Vandenelsen's trail caught up with her in Acapulco, Mexico. The children were reunited with their father in January.

On Thursday, Justice James Donnelly instructed the jurors to decide whether Vandenelsen took the children from their home because she honestly believed they were in emotional danger.

"The court must be satisfied that the taking of any young person was necessary to protect the young person from danger of imminent harm," Donnelly said.

The necessity defence is rarely allowed because it must meet specific conditions, said Hamish Stewart, a criminal law professor at the University of Toronto.

"The Supreme Court has indicated that this is a pretty narrow defence and so it's unusual to see it raised and it's more unusual to see it succeed."

To acquit by reason of necessity, a reasonable person must conclude there was an emergency situation requiring immediate action from which there was no legal escape, Stewart said.

The benefits of the action must also outweigh the harm, he added.

"In a hypothetical example, the court says if you have to rush someone to the hospital and you break the speeding laws, that would be excused by necessity."

Call-in shows across southwestern Ontario came alive Friday with talk of the mid-morning verdict; informal polls suggested that a majority of callers disagreed with the jury's findings.

"I think it's an atrocity that she got off," said one male caller, appalled by the "absolutely disgusting" fact the children were smuggled across the U.S.-Mexico border in the trunk.

"The effect it would have on the children would probably be long-lasting."

Other callers were sympathetic to Vandenelsen's plight. "I think she's done well," said a man in London, Ont. "She did what she had to do."

Hamish said the verdict likely won't spawn a rash of abductions by parents, simply because it's a difficult defence to mount. The Supreme Court disallowed the same tactic in the case of Saskatchewan farmer Robert Latimer, who was convicted of murder in the death of his severely disabled daughter, he noted.

As she took the stand in her own defence during an emotional trial, Vandenelsen tearfully described her mounting frustration and fear during a bitter custody dispute last year.

She was only able to see the children every other Saturday, and a court motion filed by Merkley, who was growing worried about what Vandenelsen was planning, would have cut off her access completely.

Police said Vandenelsen spent months preparing for the trip, renting her house, putting belongings in storage, disconnecting her phone and cashing in $60,000 worth of investments.

Defence lawyer Clay Powell told jurors they had to determine if Vandenelsen was acting in what she thought was the best interest of the kids.

"Desperate people do desperate things, and maybe the most desperate of all when your children are on the line."

Vandenelsen said she plans to keep pushing for greater access to the children at a hearing scheduled for December.

Source: Yahoo news

Addendum: The original Yahoo link is dead, but here are two articles from differing viewpoints, the first by Brian Carnell, and the second taken from a now-dead web link.

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She just had to do it
An accused child-napper, captured in Mexico, is declared not guilty of abducting her triplets

By Marnie Ko

Craig Merkley of Stratford, Ont., was given interim custody of his triplets Peter, Grey and Olivia in 1995, when they were two. Their mother, Carline (pronounced Caroline) VandenElsen, had abandoned them with plans to become a rock singer. But she soon began a bitter custody battle, and on October 14, 2000, just days before her next scheduled court appearance, she took the triplets and vanished.

Ms. VandenElsen later said she feared her visitation rights were about to be severely curtailed. She was found with the triplets in Acapulco, Mexico, on January 21, 2001, and was brought back to Canada and charged with three counts of parental abduction. The children were returned to their father. But last month, Mr. Merkley sat in disbelief in a Stratford courtroom as a jury found his ex-wife not guilty of kidnapping.

Ms. VandenElsen has had visitation rights since 1997, two Saturdays each month. But a Stratford Superior Court judge ruled that year that she was unsuitable as a parent, and in 2000 a child psychiatrist heard taped telephone calls in which VandenElsen harshly disparaged the children's father. A court hearing was set for October 23, and the mother feared her visitation rights would be revoked. It was then, she told the court, that she felt all legal avenues were exhausted. In her mind, she testified, she was not selfish, but was thinking of "the best interests of the children." In her lawyer's words, she "objectively believed" it was necessary to take them.

Mr. Merkley says, "Peter told me Carline gave them a choice when she first took them. She told them that I was going to take them away from her and that she would never see them again. She told them they could come home to me, or go with her. The children said they would go with her."

The children told their father they watched the television report on their disappearance and felt sad. "They were upset they didn't get a chance to say goodbye to me," says Mr. Merkley.

During the manhunt, Ms. VandenElsen was featured on America's Most Wanted television show. Police said at the time she was prone to impatience, fits of anger and defiant stances against authority. Her ex-husband alleges she is emotionally unstable, erratic, and has been neglectful of the children. In a statement to police, Peter, now eight, described hiding in a car trunk and sleeping on an old, beat-up couch at an airport in Mexico. He said he missed his father. On February 1, from prison in Acapulco, Ms. VandeNelsen said she was on the verge of returning the children to their father, but they did not want to go home.

The triplets practised being in the trunk of the car. Peter told his father they had signals. If their mother turned the radio on loud three times, it meant to be quiet and stay still in the trunk. In court, however, Ms. VandenElsen said the kids were only in the trunk six minutes.

The triplets reported they were allowed to take only one toy and had to "walk a lot." They told their father they walked daily to Wal-Mart to get food, although to avoid attracting attention, VandenElsen would take only one child out at a time. The other two children, then age seven, were left alone in their apartment on a seedy back road of Acapulco, high above the five-star vacation hotels. Olivia, who had long hair and loved ponytails and braids, was shorn so short she looked like a boy. Peter was bitten by a dog. He received rabies shots when he returned home. The children had recurrent ear infections and were found covered with insect bites. After the family was traced, Mr. Merkley was flown to Acapulco, and found the boys walking alone, one shirtless, down a hill from the apartment. It was a tough neighbourhood and dogs and people were lying in the gutters. Olivia was returned to him shortly afterward.

"The boys ran into my arms. Olivia's hair was so chopped up I didn't recognize her at first. We just looked at each other for a moment. She slowly leaned forward and grabbed my neck and held on very tight," says Mr. Merkley, with a catch in his voice.

Ms. VandenElsen recently terminated the services of her lawyer (believed to be her sixth) and is representing herself in the ongoing custody battle. Mr. Merkley maintains the children are hurt by the twice-a-month visitation their mother was awarded in October (see story, page 23), even though she is under orders not to mention the court case to them. "They came in after one visit and did not say hello," he says. "They said, 'We have to go to court and tell the judge what we really want in our heart.'

"I firmly believe she is continuing to manipulate them."

Source: marnieko.com