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JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience:  Over 11 years of practice in litigation including 10 years as a state prosecutor
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A woman, after about 20 years of marriage divorces and loses

Resolved Question:

A woman, after about 20 years of marriage divorces and loses custodial guardianship. Her 2 kids are 25 and 28. Sometime between 1992 and 2003, the dad makes the kids disappear. He replaces them with the children of his mistress. Due to distancing and clever deception the mom doesn't register the original kids are possibly murdered. But--sometime around 2005 she has closer contact and notices. Disabled to begin with with a mood disorder, she nevertheless tries to locate the original kids and to build evidence to launch a police investigation. She is sure there has been foul play and that her ex-spouse is a killer. She is told that it is too late, and the statute of limitations against a criminal charge is exhausted. She is advised by an assistant d.a. that there does not appear to have been criminal intent on his or her part. It is too late for a punitive suit. What can she do to get justice and peace of mind? She believes there is a murderer of children in the family and fears him
Submitted: 7 years ago.
Category: Criminal Law
Expert:  JD replied 7 years ago.

Murder has no statute of limitations. A criminal investigation may certainly be continued. Even if it is only a missing person's investigation, law enforcement should be working with her. If that is not the case she should continue speaking to their superiors until it happens.


A wrongful death lawsuit may still be commenced though the general statute of limitations for wrongful death is generally 2 years. There are provisions that toll a statute of limitations particularly where the tortfeasor (the husband) takes steps to conceal the event. Therefore, when and if she is able to determine what happened she still may be able to file a civil lawsuit.


She should consult a local attorney to assist her in the investigation and operate as a liaison and adviser between her and law enforcement.


I am very sorry for the situation.


Please reply if I can help further.



Customer: replied 7 years ago.


Will you take a moment to define your terms:


"wrongful death"


"tolling" a statute of limitations




Expert:  JD replied 7 years ago.



Wrongful death - This is a civil lawsuit that is filed against someone who's actions result in someone's death. It is considered a tort (a civil wrong), and has no effect on any simultaneous criminal wrong (murder) that may also occur. You probably remember the O.J. Simpson case where he was acquitted of the criminal murder charge but was found liable in the wrongful death case. This is primarily because the difference in the burden of proof involved in each case. A criminal case must be proven beyond a reasonable doubt. A civil case need only be proven by a preponderance of the evidence (tip of the scale).


Tortfeasor - one who commits a tortious act... such as wrongful death


Tolling of a statute of limitations - there are certain things that can happen which will toll or delay the applicable statute of limitations from expiring. Many instances where tolling comes into account involve the intentional concealing of the actionable claim. For example, if someone were responsible for a wrongful death and then took steps to conceal that death for several years there would be a good argument to "toll" the statute of limitations until the wrongful death was discovered.


Please reply if I can help further.



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