2010.06.28 - Kyron's Dad files for divorce and restraining order

[Calliope]

"In many cases, the person restrained should contest the Restraining Order and request a hearing for such purpose. If you do not request a hearing within 30 days, you lose your right to a hearing and the Restraining Order stays in effect for a period of one year. It can then be renewed for an additional year, and another, and another."
http://www.keithwalkerattorney.com/domestic_violence.htm

Terri didn't contest the RO within 30 days, so it certainly appears that she has lost her right to a hearing and the restraining order will stay in effect for a period of a year.

She did not lose her right to ask for visitation with/custody of her daughter.

2. Modifying the Order


a. Within 30 days after the restraining order
is served, respondent may request a
hearing at which the court may cancel
the order or change any terms.

b. Once 30 days have passed since the
order was issued, either party may
request a modification only to the terms
in the order that provide for custody and
parenting time. The clerk must provide,
without charge, the number of certified
true copies of the request for
modification of the order and notice of
hearing necessary to effect service.
Service must be effected in the manner
that summons is served.

IV. THE CONTESTED HEARING PROCESS

Four types of contested hearings are available after the
court issues a FAPA restraining order:


• A hearing within 30 days following initial service of
the restraining order on objections to the order or
its specific provisions;


• An “exceptional circumstances” hearing to
determine temporary custody and resolve other
contested issues.


• A hearing at any time that the restraining order
remains in effect, regarding modification of child
custody or parenting time issues, or both, similar
to any other show cause hearing on those issues.


• A hearing to challenge the basis for renewal of an
order. This last type is addressed in III.G., above.




Additionally, a judgement made under statutes regarding dissolution, annulment or separation supercede those made under statutes regarding FAPA.


http://courts.oregon.gov/OJD/docs/OSCA/cpsd/courtimprovement/familylaw/FAPA_Benchguide_4-24-06.pdf

 

[Calliope]

<snipped vulgar reference> Bunch can file any motion he wants, Calliope. <snip>

Well, just read my above post. She has the absolute right by law, to ask for a modification in the RO regarding parenting time and custody.

 

[Pensfan]

"Once 30 days have passed since the order was issued, either party may request a modification only to the terms in the order that provide for custody and parenting time."

She can ask for anything she wants, but thinking logically, if the RO against Terri was taken out to protect Kaine AND the toddler, there will not be any modification r/t custody and parenting time. Because the RO will remain in effect for 12 months (since she did not contest it within 30 days), if the RO was initiated to protect Kaine and the toddler, it is ridiculous to attempt to seek modification. This would nullify the one year guarantee on the RO's protection.

 

[Calliope]

He hasn't gotten away with anything yet. He just filed a motion. I could file a motion to declare myself Queen of Pluto. I could ask the court to make Calliope pay if she contests my motion as well. Doesn't mean it will happen.

Doesn't mean he'll be awarded the motion (but I am betting he is), but he absolutely had a right by law to file for a modification of the RO under FAPA. No time limit for custody / visitation issues.

 

[Calliope]

"Once 30 days have passed since the order was issued, either party may request a modification only to the terms in the order that provide for custody and parenting time."

She can ask for anything she wants, but thinking logically, if the RO against Terri was taken out to protect Kaine AND the toddler, there will not be any modification r/t custody and parenting time. The RO will remain in effect for 12 months because she did not contest it within 30 days of its initiation, so if the RO was initiated to protect Kaine and the toddler, it is ridiculous to attempt to seek modification.

Oh, and then there is this:

b. If the court awards parenting time to a
parent who committed abuse, the court
must include adequate provisions in its
order to protect and provide for the
safety of petitioner and the child or
children. The protections under ORS
107.718(6) include, but are not limited
to, requiring one or more of the
following:
1) the exchange of the child or
children take place at a particular
location;
2) the parenting time be supervised;
3) the perpetrator of the abuse attend
and complete a program of
intervention for perpetrators of
domestic violence or other
counseling program the court
deems appropriate;
4) the perpetrator of the abuse not
possess or consume alcohol or
controlled substances during the
parenting time and up to 24 hours
before;
5) the perpetrator of the abuse pay the
costs of supervision of the
parenting time and any other
conditions placed on him or her by
the court; and
6) no overnight parenting time occur.



For those who had wondered if the court would be able to handle this. They are required to handle this.

 

[Calliope]

"Once 30 days have passed since the order was issued, either party may request a modification only to the terms in the order that provide for custody and parenting time."

She can ask for anything she wants, but thinking logically, if the RO against Terri was taken out to protect Kaine AND the toddler, there will not be any modification r/t custody and parenting time. Because the RO will remain in effect for 12 months (since she did not contest it within 30 days), if the RO was initiated to protect Kaine and the toddler, it is ridiculous to attempt to seek modification. This would nullify the one year guarantee on the RO's protection.

Obviously the law thinks otherwise. Oh, and I posted above the mandated actions the court must take to protect the petitioner and child.

 

[Donjeta]

JMO but I think they're fishing.

If it was really about being the primary caretaker for the baby and about the baby's best interests they'd have asked for a hearing about this right away when the RO was filed and not after the other parent has already been her primary caretaker for months and the baby may already have had a chance to be traumatized being without her.

I'm sure it didn't take a family attorney three and a half months to come up with the notion that it's generally good for children to have contact with both of her parents or to find an expert witness willing to be paid to say so.

Saying that they've been asking Kaine to give visitation outside of court is a strategy to counter the claims that she's not been interested in seeing her baby and making Kaine out to be the bad guy here because he just won't care that the baby has lost her mother but IMO it wasn't the fair way to go about it since if Kaine agreed to a RO violation by giving her visitation I think it might open the door to nullify the RO altogether. Sneaky.

I think they're trying to force Kaine/LE to show their hand and produce some of their evidence that Terri is involved to squash this motion because Houze doesn't like not knowing what they have.

And oh, poor Terri, she has 350.000 dollars (or whatever) to pay for a topshot criminal defense atty but no money to pay for supervision to see her precious baby. It's just priorities.

 

[Pensfan]

Respondent is rstrained from intimidating, molesting , interfering with or menacing Petitioner (Kaine), or attempting to intimidate, molest, interfere with or menace Petitioner directly or through third parties.

Respondent is restrained from intimidating , molesting, interfering with or menacing, or attempting to intimidate, molest, interfere, or menace, the minor child/ren, in Petitioner&#8217;s custody (the toddler) directly or through third parties.
http://ww w.scribd.com/doc/34071571/Kaine-Horman-s-restraining-order-request


In the RO, the toddler and Kaine are identified as those who are in need of protection. Modifying the RO so Terri can be in the same room with her daughter nullifies the award granted to the Petitioners (Kaine and the toddler) when the respondent (Terri) didn't contest the RO during the first 30 days.

Terri might have been able to have her visitation and custody issues revisited if she had contested the RO during the first 30 days, BUT SHE DIDN'T. The judge is unlikely to nullify the award to the Petitioners (Kaine and the toddler) that came with Terri not contesting the RO.

 

[Calliope]

JMO but I think they're fishing.

If it was really about being the primary caretaker for the baby and about the baby's best interests they'd have asked for a hearing about this right away when the RO was filed and not after the other parent has already been her primary caretaker for months and the baby may already have had a chance to be traumatized being without her.

I'm sure it didn't take a family attorney three and a half months to come up with the notion that it's generally good for children to have contact with both of her parents or to find an expert witness willing to be paid to say so.

Saying that they've been asking Kaine to give visitation outside of court is a strategy to counter the claims that she's not been interested in seeing her baby and making Kaine out to be the bad guy here because he just won't care that the baby has lost her mother but IMO it wasn't the fair way to go about it since if Kaine agreed to a RO violation by giving her visitation I think it might open the door to nullify the RO altogether. Sneaky.

I think they're trying to force Kaine/LE to show their hand and produce some of their evidence that Terri is involved to squash this motion because Houze doesn't like not knowing what they have.

And oh, poor Terri, she has 350.000 dollars (or whatever) to pay for a topshot criminal defense atty but no money to pay for supervision to see her precious baby. It's just priorities.

They were clearly waiting until they argued and won the judgement that went through last week. She is required to pay for the supervision. I paraphrased above what it was Bunch asked that Kaine pay for.

 

[Calliope]

Respondent is rstrained from intimidating, molesting , interfering with or menacing Petitioner (Kaine), or attempting to intimidate, molest, interfere with or menace Petitioner directly or through third parties.

Respondent is restrained from intimidating , molesting, interfering with or menacing, or attempting to intimidate, molest, interfere, or menace, the minor child/ren, in Petitioner’s custody (the toddler) directly or through third parties.
http://ww w.scribd.com/doc/34071571/Kaine-Horman-s-restraining-order-request


In the RO, the toddler and Kaine are identified as those who are in need of protection. Modifying the RO so Terri can be in the same room with her daughter nullifies the award granted to the Petitioners (Kaine and the toddler) when the respondent (Terri) didn't contest the RO during the first 30 days.

Terri might have been able to have her visitation and custody issues revisited if she had contested the RO during the first 30 days, BUT SHE DIDN'T. The judge is unlikely to nullify the award to the Petitioners (Kaine and the toddler) that came with Terri not contesting the RO.

The 30-day limit doesn't apply with regard to parenting time / custody.

This does NOT nullify the RO. It modifies the issue of parenting time (she's not asking for custody).

Kaine has gone on record (last week) indicating he would be open to supervised visitation. That is something I'm certain the judge will take into account. And it's going to be awfully hard for Kaine to back-pedal on that.


Bottom line. Oregon law allows for respondents to petition the court to modify an RO under FAPA regarding parenting time and custody at any time the RO is in effect.

 

[butterfly1978]

Personally I think this is an impossible request. The reason that Kaine filed the restraining order and it was granted was out of fear of harm to himself and the baby, she can not ask for visitation without this issue being brought up, and if she is not willing to testify or plead her case and is going to take the 5th than she is basically admitting that the allegations are true if my understanding of pleading the 5th are true. My understanding of pleading the 5th is to protect you against self incrimination, so if she is not willing to argue that the baby is not in danger by her than what is the judge to do? Surely the judge would not issue visitation to a person who is not even willing to say you know what this isn't true, but instead hides behind the 5th. I can't see a judge risking it. Seems to me that she would have to prove that the allegations are not true first.

 

[Donjeta]

The 30-day limit doesn't apply with regard to parenting time / custody.

This does NOT nullify the RO. It modifies the issue of parenting time (she's not asking for custody).

Kaine has gone on record (last week) indicating he would be open to supervised visitation. That is something I'm certain the judge will take into account. And it's going to be awfully hard for Kaine to back-pedal on that.


Bottom line. Oregon law allows for respondents to petition the court to modify an RO under FAPA regarding parenting time and custody at any time the RO is in effect.

Where's the link to Kaine saying he would be open to supervised visitation?
I just remember this:

Kaine Horman has mixed feelings about visitation, "Depending on the circumstances, the answer could be yes or no."

He anticipates the visitation issue will be resolved at future hearings.

http://www.kgw.com/news/Terri-Horman-Seeks-Visitation--104610209-missing-kyron-portland.html

Just saying it depends on circumstances does not necessarily refer to him being open to supervised visits IMO, it might mean for instance the circumstances in which Kyron had been found safe and sound and it was shown that Terri had nothing to do with it.

 

[Calliope]

Where's the link to Kaine saying he would be open to supervised visitation?
I just remember this:



http://www.kgw.com/news/Terri-Horman-Seeks-Visitation--104610209-missing-kyron-portland.html

Just saying it depends on circumstances does not necessarily refer to him being open to supervised visits IMO, it might mean for instance the circumstances in which Kyron had been found safe and sound and it was shown that Terri had nothing to do with it.

His response was made in the context of her attorney wanting to modify the RO to allow for supervised visitation. Therefore, it stands to reason he meant the circumstances of the supervision and how the order was to be carried out.

 

[Donjeta]

They were clearly waiting until they argued and won the judgement that went through last week. She is required to pay for the supervision. I paraphrased above what it was Bunch asked that Kaine pay for.

I can't find it now but here it is from the petition itself:

Awarding attorney fees and costs to Respondent pursuant to ORS 107.73(05 9 if this matter is contested

To the extent that the Petitioner insists on professional supervision, he should bear the costs because Respondent is not employed and has no significant assets.

I don't see where Bunch says anything about her paying for any kind of supervision. Who is she going to get to supervise it for free, seeing as how it is implied that she has no money to pay anybody, professional or not? Her friends? Would or should Kaine trust these non-professionals if they are paid by Terri or doing it as a favor for her? Of course not. (IMO)

 

[Calliope]

Personally I think this is an impossible request. The reason that Kaine filed the restraining order and it was granted was out of fear of harm to himself and the baby, she can not ask for visitation without this issue being brought up, and if she is not willing to testify or plead her case and is going to take the 5th than she is basically admitting that the allegations are true if my understanding of pleading the 5th are true. My understanding of pleading the 5th is to protect you against self incrimination, so if she is not willing to argue that the baby is not in danger by her than what is the judge to do? Surely the judge would not issue visitation to a person who is not even willing to say you know what this isn't true, but instead hides behind the 5th. I can't see a judge risking it. Seems to me that she would have to prove that the allegations are not true first.

With respect, asserting your 5th Amendment rights does not equate to an admission of guilt.

 

[Donjeta]

It was made in the context of her attorney wanting to modify the RO to allow for supervised visitation. Therefore, it stands to reason he meant the circumstances of the supervision and how the order was to be carried out.

That's not the way I see it but we can agree to disagree. IMO he could have meant a variety of things from "if you tell us what you did to Kyron maybe yes, otherwise no", "I think it could be safe in prison under a constant guard" or "over my dead body, maybe yes, otherwise no". If his lawyer is any good she's not going to let them trap Kaine into admitting he's agreed to supervised visitation and paying for it if he isn't just because he said depending on the circumstances because circumstances is a very vague statement.

 

[Calliope]

I can't find it now but here it is from the petition itself:





I don't see where Bunch says anything about her paying for any kind of supervision. Who is she going to get to supervise it for free, seeing as how it is implied that she has no money to pay anybody, professional or not? Her friends? Would or should Kaine trust these non-professionals if they are paid by Terri or doing it as a favor for her? Of course not. (IMO)

I posted the where the law requires her to pay. "Professional" I take to mean a psychologist, or specialist of some sort, etc.; if Kaine insists on that, then they are asking he pay the costs for that type of supervision. (which I am assuming would be the difference between that and what the usual cost for a court ordered supervision would be). In other words, if Kaine tries to make it so she can't afford to have visitation, even though it's ordered, he is in effect negating the order and therefore should have to pay for whatever special supervision he requests.

 

[Calliope]

That's not the way I see it but we can agree to disagree. IMO he could have meant a variety of things from "if you tell us what you did to Kyron maybe yes, otherwise no", "I think it could be safe in prison under a constant guard" or "over my dead body, maybe yes, otherwise no". If his lawyer is any good she's not going to let them trap Kaine into admitting he's agreed to supervised visitation and paying for it if he isn't just because he said depending on the circumstances because circumstances is a very vague statement.

Well, that cat's already out of the bag, IMO. But yes, we can agree to disagree

 

[Donjeta]

I posted the where the law requires her to pay. "Professional" I take to mean a psychologist, or specialist of some sort, etc.; if Kaine insists on that, then they are asking he pay the costs for that type of supervision. (which I am assuming would be the difference between that and what the usual cost for a court ordered supervision would be). In other words, if Kaine tries to make it so she can't afford to have visitation, even though it's ordered, he is in effect negating the order and therefore should have to pay for whatever special supervision he requests.

I don't see how him contesting this demanding professional supervision (if that's what he's going to do) negates a court order giving her supervised visits that has not even been made yet.

 

[Donjeta]

b. If the court awards parenting time to a
parent who committed abuse, the court
must include adequate provisions in its
order to protect and provide for the
safety of petitioner and the child or
children. The protections under ORS
107.718(6) include, but are not limited
to, requiring one or more of the
following:
1) the exchange of the child or
children take place at a particular
location;
2) the parenting time be supervised;
3) the perpetrator of the abuse attend
and complete a program of
intervention for perpetrators of
domestic violence or other
counseling program the court
deems appropriate;
4) the perpetrator of the abuse not
possess or consume alcohol or
controlled substances during the
parenting time and up to 24 hours
before;
5) the perpetrator of the abuse pay the
costs of supervision of the
parenting time and any other
conditions placed on him or her by
the court; and
6) no overnight parenting time occur.

Calliope, did you mean that this means the law requires Terri to pay for the costs of the supervision?

I thought (I'm as far from a lawyer you can get though) that it means that the court can require her to pay for the costs of the supervision but it's not mandated. I got this impression because the part where it says the abusive party is required to pay for the costs of the supervision and any of the other conditions required by the court is included in the list following "protections include but are not limited to one or more of the following". So the court could but is not required to order all the things in that list, they can pick and choose including the payment part. OTOH they can also order additional things. Couldn't the court also require the abuser to pay for the costs of professionally supervised visits if they order such as a condition for the visits?