- Associated Press - Wednesday, February 4, 2015

NORTH HAVERHILL, N.H. (AP) - An 18-year-old girl who fled with her mother a decade ago in a custody case can be questioned by prosecutors, a judge ruled Wednesday, but the teen is in hiding and it’s not clear how or when she would come forward.

Mary Nunes was 8 when she fled with her mother, Genevieve Kelley, from New Hampshire. Kelley turned herself in to authorities in November on custodial interference charges. She said she wants a trial, and her lawyer said Mary plans to testify for her mother.

Kelley alleges she fled to protect her daughter from Kelley’s ex-husband, Mark Nunes, who she alleges abused the child. He was investigated but not charged.

Judge Peter Bornstein ruled Wednesday that Mary needs to be questioned by prosecutors before her mother’s trial, because the state has no idea what she is planning to testify. Bornstein also ruled Mary would not be allowed to give videotaped testimony.

Kelley’s lawyer had asked that her testimony be videotaped, saying a psychiatrist diagnosed her with post-traumatic stress disorder in 2004. Rosenfeld said she would suffer mental or emotional strain if she has to testify in court.

Prosecutor John McCormick responded that while the state is sensitive to Nunes’ well-being, if she is going to be a witness, she should appear at trial, not as part of a “packaged videotaped presentation.”

Bornstein said he had no evidence that the diagnosis from 2004 would affect her today, and that even if there were evidence, “it’s so remote in time.”

When asked how he would find Mary, McCormick said, “That’s a good question.” He said he hoped the defense would help arrange the meeting.

Kelley, 50, of Whitefield, was released from jail on Jan. 7, nearly three weeks after supporters posted $250,000 cash bail.

She has said her daughter is safe, though authorities don’t know where she is. Kelley is not allowed to have contact with her or with her husband, Scott Kelley, who also is missing and is charged with custodial interference.

McCormick has asked for access to Kelley’s passport in hopes of locating her daughter. Rosenfeld objected, saying she would be producing evidence against herself in violation of her constitutional rights against self-incrimination. Bornstein did not rule on that request, asking both lawyers to submit further arguments on the subject.

Rosenfeld said in a motion Kelley plans to offer testimony supported by experts that her daughter’s court-appointed guardian and social service agencies “had chosen not to believe” what the girl said. “Simply put, there was no lawful alternative to provide safety for this child,” he wrote.

McCormick said the investigation into whether Mary was abused was “greatly compromised” by Kelley’s actions.

He said because Kelley refused to allow Mary to be evaluated in 2004, “she all but sabotaged the prospect of ever bringing Mary’s alleged abuser to justice, whether the abuser was who the defendant claims, some other person close to Mary when she was a young child, or whether Mary was simply pressured” into accusing her father of abuse.

Mark Nunes was in court Wednesday. “Who speaks for Mary?” he asked afterward. “I’m very concerned that there’s no independent voice to speak for Mary.”

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