Sheriff Ross Mirkarimi left San Francisco's Superior Court in tears Friday after learning that he will have to wait at least five more days to find out if he can see his 2-year-old son, Theo.
A judge on Friday rejected Mirkarimi's request for emergency visitation rights, but set a hearing for next Wednesday to consider allowing the San Francisco sheriff to spend time with his son.
It was the third time in two weeks that a judge has refused to allow the sheriff to see or speak to Theo.
Mirkarimi has been barred from having any contact with his wife, Eliana Lopez, and Theo since Jan. 13, when he was arrested for allegedly bruising Lopez during an argument on New Year’s Eve. According to court documents, that argument took place in front of Theo.
Last month, Mirkarimi pleaded not guilty to three misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness.
Mirkarimi was optimistic before the hearing began Friday afternoon, telling reporters, "I'm going in there with the greatest of hope."
"I'm dying to see my son," he said. "I can’t wait to hug my son. I’d like to hug my son and wife and get back to some level of normalcy. And I’m hoping today is the beginning of that.” Mirkarimi said he had bought children's books in anticipation of a visit, including "Curious George and the Ship by the Sea.”
But after the hearing, Mirkarimi acknowledged, “I was getting a little bit too hopeful.”
When a reporter asked Mirkarimi, “What do you want your son to know?” the sheriff began to cry. “I miss my son terribly, and he misses me,” he said. Then he walked away.
Lopez also attended the hearing with two new attorneys, Deborah H. Wald, a family law attorney, and Paula Canny, a criminal defense attorney.
Canny has represented such clients as Greg Anderson, the athletic trainer who chose to go to jail rather than testify against Barry Bonds in the baseball player's perjury trial. At previous hearings, Lopez had been represented by Cheryl Wallace.
After the hearing, Canny told reporters she thought the case was "being over prosecuted, and it's partly because who Ross is and it's partly because what was reported about Ross, but it's just flat-out wrong."
“I’m sure Ross is crushed, and Eliana is crushed, and Theo is crushed,” Canny said.
Wald described Theo as "struggling."
"Right now, we have a little boy who has no idea where his daddy is, and that’s a terrible thing to happen," she said.
Then Wald held up a drawing she said Theo had made. "This is Theo's voice in the courtroom."
The only comment Lopez made was to a reporter from a Spanish-language media outlet. "We keep fighting," she said in Spanish.
Lopez and Mirkarimi did not speak during the hearing. Instead, their attorneys submitted submitted documents to Judge Ronald Albers, who then returned a written decision from his chambers.
When Lopez entered the courtroom, she approached her husband, but her attorney directed her to the opposite side of the room.
In court documents in support of Mirkarimi's request, Lopez wrote, "My son Theo is asking for his father every day. He waits for Ross on the stairs in the morning, hoping Ross will be there to take him to school; he runs to the window in the evenings looking for Ross."
Last week, Judge Susan Breall encouraged Mirkarimi to go to family court to request permission to visit his son, after she twice denied his previous requests. Breall said family court is where such petitions are handled. Mirkarimi then filed an emergency visitation request.
"They're extremely rare," Superior Court Communications Director Ann Dolan said of the request. "The judges hardly ever grant emergency orders on visitation without some overwhelming, overriding evidence."
Since his arrest, Mirkarimi, who was sworn in as sheriff on Jan. 8, has said that he would not resign. During a meeting at City Hall last month, Mayor Ed Lee asked him to consider taking a leave of absence.
If Mirkarimi were to step aside temporarily, the undersheriff would take charge of the Sheriff's Department. But the current undersheriff, Jan Dempsey, plans to retire soon, and a replacement has not yet been named.
Mirkarimi spent last week interviewing the 17 internal candidates for the position. He told reporters during a break in the hearing that he would announce the new undersheriff next week, possibly Monday.