BOSTON -- When Stephen Fagan swept his daughters from their mother in 1979, police and federal authorities turned aside requests from her and her lawyer to try to find the missing children shortly after the abduction.
Attorney Ellen Howard said in a memorandum that she and Barbara Kurth spoke with the Framingham police, an FBI agent and the head of the criminal division of the U.S. attorney's office in Boston, hoping to persuade them to pursue Fagan for kidnapping -- and possibly possessing a valuable stolen painting.
But Howard, who worked with Kurth's principal lawyer, Jacob Atwood of Boston, at the time, said authorities were reluctant and contended there was no state or federal law prohibiting parents from abducting their children. Howard's memorandum was written this week and was made available by Atwood yesterday.
The law enforcement officials all directed Kurth and Howard to the Probate Court judge who had heard the custody case when Kurth and Fagan divorced, according to the memorandum. By that time in November and December 1979, Fagan apparently had already moved to Florida.
On Nov. 9, 1979, 11 days after he disappeared with his two children, Fagan was in Florida applying for a driver's license under the name William S. Martin, his new identity, Florida records show.
Yesterday, Middlesex District Attorney Thomas F. Reilly said he understood why police and federal authorities had not treated Fagan's abduction more seriously.
"It was a different era," Reilly said. "It was a different era for parental kidnapping, for domestic violence, for a lot of things."
Those issues, he said, were treated as "family matters" for the probate court -- not for the police. Reilly's office is now prosecuting Fagan under the state's parental kidnapping law.
In the memo, Howard said that Robert Collings, then the head of the U.S. attorney's criminal division in Boston, sympathized with Kurth's plight, but couldn't help. The federal statue prohibiting parents from abducting their children did not take effect until January 1980, a month later.
Framingham police were less sympathetic, Howard said. One officer told her that state criminal law did not prohibit a parent from abducting his children. He apparently didn't realize the Massachusetts Legislature enacted such a criminal law in August 1979.
Collings, who is now a U.S. magistrate in Boston, could not be reached for comment. At the time, he directed Kurth to speak to an FBI agent about the possibility that Fagan might have a piece of stolen artwork in his possession.
Howard said Kurth told the agent that Fagan had recently given the painting, which she said had been stolen from a gallery in Boston, to his parents, and they had hung it in the hall of their apartment house in Marlborough.
The agent checked with the gallery and was informed that a painting of that description had been stolen. However, when the agent went to Fagan's parents' apartment he found it empty -- they had moved to Florida.
Fagan, now 56, was arrested April 16 on kidnapping charges and returned to Framingham. He was freed Wednesday on $250,000 cash bail and is expected to return to Palm Beach soon.
Yesterday, Fagan remained at the Framingham home of a relative with his daughters and Harriet Golding Martin, his wife.
Pub Date: 4/25/98