Father Back In Jail For Kidnapping Can Win Freedom By Returning Sons From Germany

A man facing federal parental kidnapping charges is back in jail, less than a day after being released under a ruling by a federal judge.

Cole C. Cummings faces 180 days in jail for contempt for taking his sons to Germany in violation of a state-court approved parenting plan.

Superior Court Commissioner Valerie Jolicoeur was the third Spokane judge in three weeks to pound a gavel in the international child-custody fight now attracting national media interest.

Cummings, 29, can win his freedom immediately by returning his two sons to Eastern Washington from Germany, Jolicoeur ruled.

Her ruling is essentially the same conclusion U.S. Magistrate Judge Cynthia Imbrogno reached in deciding Cummings was a flight risk and should remain in jail unless he returns his boys from Germany, where they live with his new wife.

He was extradited from Germany to Spokane in mid-January to face a federal charge accusing him of international parental kidnapping.

Federal prosecutors want Cummings kept in jail, saying he is a flight risk because his wife and two sons remain in Germany.

Imbrogno ruled that Cummings could be released if he returned his children and mitigated flight-risk concerns.

But the federal magistrate’s ruling was overturned Friday by U.S. District Court Judge Frem Nielsen.

The senior judge ruled Cummings wasn’t a flight risk and held that requiring the return of the children violated The Hague Convention.

Nielsen ruled that Cummings could be released on a $50,000 bond, posted on Monday by his father, Dean Cummings of Newport, Wash.

U.S. Attorney Jim Connelly said Wednesday the Justice Department is still considering whether to appeal Nielsen’s ruling to the 9th U.S. Circuit Court of Appeals.

The international treaty, signed by the United States, Germany and 39 other nation states, provides a legal forum for child custody battles.

The boys’ mother, Dana Hopkins of Kettle Falls, Wash., was designated as the custodial parent of the boys when she was divorced from Cummings in Pend Oreille County in 1995.

Before being released from jail on Monday evening, Cummings was served with legal papers ordering him to show cause in Superior Court why he shouldn’t be found in contempt.

Attorney Priscilla Vaagen, who represents Cummings’ ex-wife in the domestic case, filed the contempt motion.

Cummings showed up Tuesday afternoon, represented in the civil proceeding by private attorney Maryann Moreno. She unsuccessfully asked Commissioner Jolicoeur for a delay in the hearing.

Cummings violated the parenting plan and refused in open court to return the children, Jolicoeur said in her written contempt order.

“The court finds that The Hague Convention does not supersede the power of this court to order return of the children,” the court commissioner said.

Cummings was immediately handcuffed and taken to jail.

Vaagen said she was pleased that a state court judge asserted control over the child custody issues.

One of Cummings’ attorneys said the fight isn’t over.

“The plan at this point is to appeal this to the Superior Court,” Moreno said of the commissioner’s contempt finding.

Assistant Federal Defender Steve Hormel, representing Cummings on the federal criminal charge, said he likely will file a motion to dismiss the indictment by Feb. 18.

Hormel and Moreno both say the child custody issue is one that should be decided through provisions of The Hague Convention.

Vaagen said Hopkins doesn’t have the money to hire a German attorney and fight the child custody battle through provisions of the international treaty.

There is a question whether that treaty could be used because more than a year has passed since the children were taken to Germany, Vaagen said.

German authorities, if they decided the children had settled in that country, could elect to decline to extradite the boys if their mother prevailed, Vaagen said.

Producers for a television network news magazine have contacted attorneys and expressed an interest in using the case as an example of international custody battles.