This is why unmarried mothers need to have AUTOMATIC custody of the children they give birth to. Just to prevent some sperm donor from walking in some years after the child's birth and taking off with the kid.
http://www.dailycomet.com/article/20120613/APN/1206130795?p=1&tc=pg
Kidnap charge restored in missing Lynn boy caseBy DENISE LAVOIE
AP Legal Affairs Writer
Published: Wednesday, June 13, 2012 at 2:56 p.m.
Last Modified: Wednesday, June 13, 2012 at 2:56 p.m.
BOSTON - A parental kidnapping charge was reinstated Wednesday against a Lynn man whose 5-year-old son disappeared almost four years ago.
The Supreme Judicial Court overturned a ruling by a Superior Court judge who dismissed the kidnapping charge against Ernesto Gonzalez. The judge ruled that Gonzalez could not be charged with parental kidnapping because there was no court order denying him custody of his son, Giovanni.
Gonzalez remains behind bars without bail on a charge of misleading police.
The boy disappeared in August 2008 after a weekend visit with his father. Gonzalez later told a Boston Globe reporter he killed and dismembered the boy, then disposed of his body parts in trash containers throughout the city.
No body was ever found, and Gonzalez has not been charged with murder.
Gonzalez, who was not married to the boy's mother, challenged the constitutionality of a state law that says the mother has custody of children born to unmarried parents until a court makes a ruling. He argued that the law discriminates against fathers on the basis of their gender.
But the SJC said it did not have to rule on the constitutional question because the law also provides that if either parent gives up or abandons the child and the other parent is fit to have custody, that parent will be entitled to custody.
The court noted that Gonzalez had not been in his son's life for three years. Several weeks before the boy disappeared, Gonzalez had asked the boy's mother for permission to have weekend visits. She agreed, and Gonzalez had two weekend visits with him. During the third visit, the boy disappeared.
"The defendant did not pursue his remedy to obtain sole or shared physical custody of (Giovanni) in the Probate and Family Court. Instead, according to the grand jury testimony, he allegedly took (Giovanni) to the exclusion of his custodial parent, and now asserts his custodial rights in a kidnapping prosecution," Justice Barbara Lenk wrote for the court in the unanimous ruling.
"Allowing unmarried, noncustodial fathers to take a child first and raise ... challenges to the constitutionality of the custody statutes later would place the child's safety at risk, and thus contravene the child's best interests."
Gonzalez's lawyer, Russell Sobelman, did not immediately return a call seeking comment.
"I am pleased that the SJC overturned the lower court's ruling so that we may proceed with parental kidnapping charges against Mr. Gonzalez," said Essex County District Attorney Jonathan Blodgett.
In court documents filed in 2010, authorities said they discovered Giovanni's blood on several items inside Gonzalez's apartment, including a knife, the floor, the bathroom threshold and a bottle of cleaner.
