NORTH HAVERHILL, N.H. – Lawyers for a woman who fled from New Hampshire with her then-8-year-old daughter a decade ago in a custody case want a judge to allow her defense to be that she was "acting in good faith to protect the child from real and imminent physical danger" from her father.
A prosecutor says that defense only applies if Genevieve Kelley had stayed in New Hampshire with the girl. A hearing on the motion and others is scheduled for Wednesday.
Kelley, 50, a family practice doctor from Whitefield, turned herself in to authorities in November on custodial interference charges. She said she violated a family court decision to protect her daughter, Mary Nunes, from her ex-husband, Mark Nunes, whom she alleges abused the child. He was investigated, but not charged; authorities felt he was unfairly accused.
Kelley said she fled to avoid a greater harm to her child, but prosecutor John McCormick said that defense doesn't apply under state law. Kelley's lawyer, Alan Rosenfeld, said the law is meant to prevent that defense from being available to parents who take children out of state as part of an alleged crime; he said it would be up to prosecutors to prove beyond a reasonable doubt that Kelley left after no longer having a legal right to do so.
Rosenfeld said Kelley plans to offer testimony that at a point where her daughter's court-appointed guardian and social service agencies "had chosen not to believe" what the girl said, the legal system was unable to protect her. "Simply put, there was no lawful alternative to provide safety for this child," he wrote.
McCormick said the investigation into whether Mary was abused was "greatly compromised" by Kelley's actions.
He said because Kelley intentionally refused to follow the court's order for Mary to be evaluated in 2004, "she all but sabotaged the prospect of ever bringing Mary's alleged abuser to justice, whether the abuser was who the defendant claims, some other person close to Mary when she was a young child, or whether Mary was simply pressured" into accusing her father of abusing her.
Rosenfeld said Mary Nunes, now 18 and in hiding, plans to be a witness for her mother at the trial. He has asked that her testimony be videotaped, saying a psychiatrist diagnosed her with post-traumatic stress disorder in 2004. Rosenfeld said she would suffer mental or emotional strain if she has to testify in court. McCormick responded that while the state is sensitive to Nunes' well-being, if she is going to be a witness, she should appear at trial, not as part of a "packaged videotaped presentation."
Kelley was released from jail on Jan. 7, nearly three weeks after supporters posted $250,000 cash bail.
She has said her daughter is safe. Authorities don't know where she is. Kelley is not allowed to have contact with her or with her husband, Scott Kelley, who also is missing and is charged with custodial interference.
McCormick has asked for access to Kelley's passport in hopes of locating her daughter. Rosenfeld objected, saying she would be producing evidence against herself, in violation of her constitutional rights against self-incrimination.