Jurisdiction Challenged In Custody Case

The fight over two Eastern Washington boys now in Germany grew more contentious Wednesday when an appeal was filed.

U.S. Magistrate Judge Cynthia Imbrogno overstepped her authority when she ordered the boys returned to Eastern Washington before their father is released from jail, federal defender Steve Hormel contends.

His appeal of Imbrogno’s ruling is scheduled to be heard Feb. 4 by U.S. District Court Judge Robert Whaley.

Hormel said the magistrate’s order violates the federal Bail Reform Act and interferes with an international pact known as The Hague Convention.

Hormel represents Cole C. Cummings, 29, formerly of Newport, Wash., who is in jail without bond on a federal charge of international parental kidnapping.

Imbrogno ruled Cummings can’t get out of jail unless he authorizes the return from Germany of his two sons, now living with his new wife.

Cummings was extradited to the United States earlier this month after being arrested in Germany in November on a federal indictment sought by the FBI in May 1998.

It took the FBI, the U.S. State Department and German authorities 18 months to locate and arrest Cummings in Hahnback, Germany.

He is accused of taking his two sons, Ryan, now 9, and Kyle, 7, from Spokane to Germany in March 1998.

Assistant U.S. Attorney Tim Ohms argued that Cummings is a flight risk and should remain in jail without bond.

But the magistrate concluded that if Cummings returns his sons to the Eastern District of Washington, he can be released from jail while he awaits trial.

In an 11-page appeal motion, Hormel contends that requiring Cummings to return his children “constitutes improper punishment under the Bail Reform Act.”

The federal law, presuming a defendant’s innocence, says a suspect can be detained in jail prior to trial only for flight risk or public safety reasons.

A judge can require a jailed suspect to meet various conditions to ensure the defendant’s future appearances.

Those conditions can include such things as posting a bond, drug testing and no contact with firearms.

Hormel argues that requiring the return of the children as a condition of Cummings’ release violates The Hague Convention.

Signed in 1988 by 41 nation-states, the convention is designed to provide a legal framework to resolve international civil disputes.

“The issues here must be analyzed within the purview of The Hague Convention,” Hormel said in his appeal.

“In this case, there has been no application to Germany or to the United States requesting return of the children, the procedures required in The Hague Convention,” Hormel said.

“The magistrate has no authority to order return of the children as a condition of (Cummings’) release,” he added.

Under The Hague Convention, the defense attorney said, Germany is not required to return the children to the United States if they have “settled” in Germany.

Cummings’ ex-wife, Dana Hopkins of Kettle Falls, Wash., is the court-appointed custodial parent for the two boys and a third son who lives with her.

Cummings was allowed weekend visits under a court-approved parenting plan filed when the couple’s divorce was finalized in November 1995.

Hopkins’ attorney, Priscilla Vaagen of Spokane, said her client lacks funds to hire a German lawyer and fight the child-custody battle through the complicated Hague Convention.

After last week’s ruling by Imbrogno, Hopkins “was ecstatic that she was going to get her kids back,” Vaagen said.

She attempted to call them in Germany on Monday and was told they couldn’t speak with her on the phone, Vaagen said.