The state’s highest court has reinstated a parental kidnapping charge against Ernesto Gonzalez, the Lynn man whose 5-year-old son, Giovanni, went missing in August 2008.
Gonzalez was the last person seen with his son and was charged with parental kidnapping and misleading investigators. He has not been charged with killing his son, though he told a Boston Globe reporter in November 2008 that he had.
A Salem Superior Court judge had tossed out the parental kidnapping charge in June 2011, but the Supreme Judicial Court ruled Wednesday that the charge could stand.
Daisy Colon, the boy’s mother, welcomed the decision, saying she still believes he is alive.
“I have not given up on that,” she said.
Essex District Attorney Jonathan W. Blodgett said in a statement that he was pleased with the decision “so that we can proceed” with the case against Gonzalez.
Attorney Russell Sobelman, who represents Gonzalez, said the decision was moot since Gonzalez has already spent more time in jail awaiting trial than he would if he were convicted of the parental kidnapping charge and given the maximum sentence of one year. (The charge of misleading authorities, however, carries a 10-year sentence, he said.)
Sobelman had no comment on the decision itself, saying he had not had time to review it.
To be charged with parental kidnapping, a parent has to take a child from his or her custodian “without lawful authority,” the court said.
Prosecutors had argued that Gonzalez, who was not married to the child’s mother but was the child’s father, did not have custody of the child and thus took the child without lawful authority.
The prosecutors cited a state law that says custody of children born to unmarried parents belongs to the mother, even after paternity has been determined or acknowledged, until a court rules on custody.
Gonzalez, who is being held in the Essex County House of Correction, sought to challenge the constitutionality of that law.
The high court, in a 15-page opinion written by Justice Barbara Lenk, said it did not have to reach the constitutional question because another part of the law also provides that if “either parent relinquishes or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody.”
The court said Gonzalez had been absent for three years from his son’s life, including a one-year complete disappearance. He had sought permission from the mother to have weekend visits with his son. His son disappeared on the third visit with him, in mid-August 2008.
“When the defendant did try to reenter [his son’s] life, he first sought out [the mother’s] permission, in apparent recognition of her role” as custodial parent, the cout noted.
The court also said that if Gonzalez wanted to challenge the constitutionality of the law giving custody to the mother, he should take another legal route, seeking physical custody in Probate and Family Court and challenging there the default rule in favor of the mother.
“To hold otherwise would allow unmarried noncustodial fathers simply to take their children, without judicial process and to the exclusion of custodial mothers, and air their grievances . . . in the subsequent criminal prosecution for parental kidnapping,” the court said.
“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,” the court said.
“I know that, sooner or later, in God’s hands, it’s going to happen,” Colon said. “We’re going to find out the truth.”