William A. Wright won in State v. Meza, No. 106,006 (Kan. App. Jan. 27, 2012), affirming Judge Quint's dismissal of Finney County interference with custody charges at preliminary hearing. The issue was whether the state showed probable cause to believe that a violation of parental rights occurred on the day in question:
By not determining whether Diaz or an appropriate family member had even tried to pick up A.M. on December 15, 2010, Smiddy failed to acquire the fundamental information necessary to know if a parenting plan violation had occurred. The district court noted that Smiddy clearly testified “he did not recall [Diaz] ever telling him that she ever attempted to pick up [A.M.] up at [Meza's] home as required in the parenting plan nor does he remember any attempts that she might have made to get the child.” The record does not clarify what happened with Meza and A.M. after Meza got A.M. from school at approximately 3:50 p.m. However, the State did not present evidence that Meza and Diaz had an agreement whereby Meza was to take A.M. to Diaz at 4:30 p.m.
The district court recognized Diaz' joint custody status and correctly pointed out Meza, as the residential parent, retained 100 percent physical custody of A.M. unless Diaz exercised her right under paragraph 4(c) of the parenting plan to pick up A.M. for a scheduled visit. Logically then, if Diaz did not try to exercise her right, there is no probable cause to believe that A.M. was taken away from Diaz.
Clearly, the next day, when Smiddy talked with and later arrested Diaz at the T–Bone address, A.M. was not in the lawful custody of Diaz according to the Finney District Court order. This means no violation of the statute could have been occurring on that day and there were no grounds to arrest Diaz at that point.
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In fact, the record indicates Smiddy arrested Meza because Smiddy believed Meza would commit a future criminal offense under K.S.A. 21-3422, not for Meza's specific actions on December 15, 2010. Smiddy testified:
“I don't know when [Meza] was specifically planning on leaving. I don't know if [Meza] was actually planning on leaving, but based on the statements [Meza] provided, yeah, I had to assume that [Meza] was planning to leave the city with the child in order to prevent Ms. Diaz ... from having her appropriate parenting time.”
Meza's intentions to leave Garden City or move sometime in the future have no bearing on whether there was sufficient probable cause that Meza committed a crime under K.S.A. 21-3422 on December 15, 2010.[Update: the state did not file a PR and the mandate issued on March 1, 2012.]