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

[desquire]

I thought this response from Rackner was another weak showing. Based on some of his comments during the last hearing, I think she's got a very sympathetic judge and her attempt to conflate the parenting time with the bigger custody resolution might have gotten some traction with him but she gives him very little to work with. You'd think she'd at least try to come up with some authority to support at least one of her points. The idea that the court can't modify a restraining order to allow parenting time without a full-blown multi-day custody hearing is a pretty big stretch, even for a sympathetic judge. I didn't see anything here that would change my view of the outcome.

 

[Calliope]

I thought this response from Rackner was another weak showing. Based on some of his comments during the last hearing, I think she's got a very sympathetic judge and her attempt to conflate the parenting time with the bigger custody resolution might have gotten some traction with him but she gives him very little to work with. You'd think she'd at least try to come up with some authority to support at least one of her points. The idea that the court can't modify a restraining order to allow parenting time without a full-blown multi-day custody hearing is a pretty big stretch, even for a sympathetic judge. I didn't see anything here that would change my view of the outcome.

When I read Bunch's motions, I see reasoned, well-sourced legal documents complete with examples of applicable law and precedent. When I read Rackner's, I see allegations based upon hearsay and a lot of emotional stamping of feet "but it's just not fair!!!!"

jmo

 

[desquire]

When I read Bunch's motions, I see reasoned, well-sourced legal documents complete with examples of applicable law and precedent. When I read Rackner's, I see allegations based upon hearsay and a lot of emotional stamping of feet "but it's just not fair!!!!"

jmo

The judge is going to be coming into this with a couple of presumptions: the law operates under the well-established presumption that it's in a child's best interests to have regular involvement with both parents and that parenting time can be limited and structured in such a way as to ensure the safety of the child and the participating parents. Additionally, FAPA is expressly written to provide the child with parenting time with the abusive parent without any prerequisite evaluations and in advance of the ultimate custody determination. Those are 3 pretty big things that Rackner is asking the judge to put aside and I'm just surprised that she (a) didn't tie her argument more closely to the best interests of the child - which is the sole issue before the judge, and (b) provided absolutely no precedent or authority, controlling or otherwise, in support of what she's asking the court to do. When you want the judge to go out on a limb for you, you need to show him that there is at least some legal authority supporting that limb. She's given nothing, even on the points where she's on very solid ground, like the issue of who pays. I don't get it.

 

[Calliope]

The judge is going to be coming into this with a couple of presumptions: the law operates under the well-established presumption that it's in a child's best interests to have regular involvement with both parents and that parenting time can be limited and structured in such a way as to ensure the safety of the child and the participating parents. Additionally, FAPA is expressly written to provide the child with parenting time with the abusive parent without any prerequisite evaluations and in advance of the ultimate custody determination. Those are 3 pretty big things that Rackner is asking the judge to put aside and I'm just surprised that she (a) didn't tie her argument more closely to the best interests of the child - which is the sole issue before the judge, and (b) provided absolutely no precedent or authority, controlling or otherwise, in support of what she's asking the court to do. When you want the judge to go out on a limb for you, you need to show him that there is at least some legal authority supporting that limb. She's given nothing, even on the points where she's on very solid ground, like the issue of who pays. I don't get it.

Is it likely that Bunch would point that out to the judge, or would that be considered condescending on his part? IOW, should he just assume the judge is aware of how weak her argument is and how it doesn't address these points?

 

[believe09]

I thought this response from Rackner was another weak showing. Based on some of his comments during the last hearing, I think she's got a very sympathetic judge and her attempt to conflate the parenting time with the bigger custody resolution might have gotten some traction with him but she gives him very little to work with. You'd think she'd at least try to come up with some authority to support at least one of her points. The idea that the court can't modify a restraining order to allow parenting time without a full-blown multi-day custody hearing is a pretty big stretch, even for a sympathetic judge. I didn't see anything here that would change my view of the outcome.

Unless they are prepared to present to the judge the proof required. You are in the field, of course, but Rackner's response seemed to be a standard response to the request that the hearing should be expedited. Her view was why should it be a rush now when it didnt seem to matter when they had a chance to contest the ro?

What makes it important to TH and team now vs June/July? Is it because they believe they have a sympathetic judge since the abatement was raised?

The thing is that this looks like a ping pong match here. If you believe it is traumatic for Baby K to be separated from her mother under any circumstances, then I suppose you would be an advocate for parenting time. If you believe that TH should be evaluated on some level (best case scenario) in order for the judge to make an informed decision regarding whether or not she should see her daughter, then I suppose you would be less likely to be an advocate of parenting time. Until that happens.

We are in a vacuum as well-what if Baby K does not miss her mother? What if she has made an excellent adjustment to her life as it is now? Shouldnt Kaine be given a chance to prove that? And why should he have to jump through hoops that the other bio parent does not?

What if Baby K misses her mother terribly? What if she has not adjusted to her life as it stands right now? Shouldnt that be brought to the judges attention as well?

All I can say as a human being is that I would absolutely NOT want to be in the position where a judge is making such a monumental decision regarding MY child's world without the maximum of information before him.

JMVHO.

 

[citigirl]

The judge is going to be coming into this with a couple of presumptions: the law operates under the well-established presumption that it's in a child's best interests to have regular involvement with both parents and that parenting time can be limited and structured in such a way as to ensure the safety of the child and the participating parents. Additionally, FAPA is expressly written to provide the child with parenting time with the abusive parent without any prerequisite evaluations and in advance of the ultimate custody determination. Those are 3 pretty big things that Rackner is asking the judge to put aside and I'm just surprised that she (a) didn't tie her argument more closely to the best interests of the child - which is the sole issue before the judge, and (b) provided absolutely no precedent or authority, controlling or otherwise, in support of what she's asking the court to do. When you want the judge to go out on a limb for you, you need to show him that there is at least some legal authority supporting that limb. She's given nothing, even on the points where she's on very solid ground, like the issue of who pays. I don't get it.

Hi desquire...we are lucky to have you here to help us understand...do you practice family law on Oregon? If so, I would like to know if you have seen a case before where a parent allows a restraining order to become permanent and then asks for an abatement, and then, almost 4 months after the restraining, asks for an expedited hearing to get parenting time. I am wondering if this is more common than the layperson thinks? And how it is usually resolved?

 

[pufnstuf]

Unless they are prepared to present to the judge the proof required. You are in the field, of course, but Rackner's response seemed to be a standard response to the request that the hearing should be expedited. Her view was why should it be a rush now when it didnt seem to matter when they had a chance to contest the ro?

What makes it important to TH and team now vs June/July? Is it because they believe they have a sympathetic judge since the abatement was raised?

The thing is that this looks like a ping pong match here. If you believe it is traumatic for Baby K to be separated from her mother under any circumstances, then I suppose you would be an advocate for parenting time. If you believe that TH should be evaluated on some level (best case scenario) in order for the judge to make an informed decision regarding whether or not she should see her daughter, then I suppose you would be less likely to be an advocate of parenting time. Until that happens.

We are in a vacuum as well-what if Baby K does not miss her mother? What if she has made an excellent adjustment to her life as it is now? Shouldnt Kaine be given a chance to prove that? And why should he have to jump through hoops that the other bio parent does not?

What if Baby K misses her mother terribly? What if she has not adjusted to her life as it stands right now? Shouldnt that be brought to the judges attention as well?

All I can say as a human being is that I would absolutely NOT want to be in the position where a judge is making such a monumental decision regarding MY child's world without the maximum of information before him.

JMVHO.

Great post, Believe.

According to the bench guide, the link to which I posted earlier in this thread, Kaine and his attorney should be permitted to do depositions and to present evidence in court to support their position.

You are right... there was no urgency on the respondent's behalf to ask for visitation until just a couple of weeks ago. I believe that the judge will take that into consideration as he decides whether or not to expedite the hearing. In my opinion, he won't, because he's not yet set a date for the hearing, and that in itself demonstrates, in my opinion, that he isn't planning to expedite.

For Terri to request expedition of the hearing was probably a mechanism that she (her attorneys) thought would be prohibitive--timewise--for Kaine (his attorney) to depose witnesses for the hearing. If the judge continues to hold off on setting a date, or if he sets a date which is a month or two off--then that in itself shows that the hearing won't be expedited, and Kaine will have the time necessary to depose witnesses and accumulate evidence to support his position.

All my opinion.

 

[Calliope]

Great post, Believe.

According to the bench guide, the link to which I posted earlier in this thread, Kaine and his attorney should be permitted to do depositions and to present evidence in court to support their position.

You are right... there was no urgency on the respondent's behalf to ask for visitation until just a couple of weeks ago. I believe that the judge will take that into consideration as he decides whether or not to expedite the hearing. In my opinion, he won't, because he's not yet set a date for the hearing, and that in itself demonstrates, in my opinion, that he isn't planning to expedite.

For Terri to request expedition of the hearing was probably a mechanism that she (her attorneys) thought would be prohibitive--timewise--for Kaine (his attorney) to depose witnesses for the hearing. If the judge continues to hold off on setting a date, or if he sets a date which is a month or two off--then that in itself shows that the hearing won't be expedited, and Kaine will have the time necessary to depose witnesses and accumulate evidence to support his position.

All my opinion.

bbm

Regarding these comments about all the time Terri had to contest, request a modification, etc.

Well, time hasn't stood still for the rest of the world in the meantime. Ms. Rackner has had the same time to prepare her case against Terri. IMO, if his attorney didn't consider and prepare for that distinct probability (as she should have been aware what the law allowed Terri to do with regard to parenting time), then she's not representing his interests very well at all. I'm not sure I'd want an attorney who could be so easily blind-sided by something that's clearly spelled out in the statutes.

Kaine will have the time necessary to depose witnesses and accumulate evidence to support his position

He made some damned serious allegations in the RO application and motions filed since. Why would you think he doesn't have evidence to support those allegations?

 

[Coldpizza]

Dad: Stepmother Abducted, May Have Harmed Kyron

Sorry if this has been posted already

http://www.aolnews.com/nation/artic.../19688080?icid=main|main|dl1|sec1_lnk3|180022

 

[believe09]

bbm

Regarding these comments about all the time Terri had to contest, request a modification, etc.

Well, time hasn't stood still for the rest of the world in the meantime. Ms. Rackner has had the same time to prepare her case against Terri. IMO, if his attorney didn't consider and prepare for that distinct probability (as she should have been aware what the law allowed Terri to do with regard to parenting time), then she's not representing his interests very well at all. I'm not sure I'd want an attorney who could be so easily blind-sided by something that's clearly spelled out in the statutes.



He made some damned serious allegations in the RO application and motions filed since. Why would you think he doesn't have evidence to support those allegations?

I wont speak for puf, but I believe that puf is bouncing off of my post regarding Kaine gathering his data to support his postition as sole custodian of Baby K. And being the decision maker and his fitness to be that decision maker.

Again, what is so all fire important now that wasnt a few months ago? Why should Kaine have assumed she would get a bee in her bonnet to want parenting time with Baby K out side of moving forward with the normal discovery process involved in a custody dispute?

 

[ami]

The judge is going to be coming into this with a couple of presumptions: the law operates under the well-established presumption that it's in a child's best interests to have regular involvement with both parents and that parenting time can be limited and structured in such a way as to ensure the safety of the child and the participating parents. Additionally, FAPA is expressly written to provide the child with parenting time with the abusive parent without any prerequisite evaluations and in advance of the ultimate custody determination. Those are 3 pretty big things that Rackner is asking the judge to put aside and I'm just surprised that she (a) didn't tie her argument more closely to the best interests of the child - which is the sole issue before the judge, and (b) provided absolutely no precedent or authority, controlling or otherwise, in support of what she's asking the court to do. When you want the judge to go out on a limb for you, you need to show him that there is at least some legal authority supporting that limb. She's given nothing, even on the points where she's on very solid ground, like the issue of who pays. I don't get it.

desquire, I totally get what you're saying, but didn't Kaine say (paraphrasing, without digging for the exact quote) that depending on circumstances he might not object to Terri having supervised visitation? Maybe the primary issue at hand for Kaine/his attorney is not so much keeping Terri from obtaining professionally supervised visitation, but to use the process of obtaining supervised visits as a way to gain information about Terri (tests, observation, etc.)

Re: the truck - if I believed my child potentially spent their last moments in one of my cars, I would never, ever let go of that vehicle and I'd drive it whenever possible. It would make me feel closer to her. JMO.

 

[Coldpizza]

I know I know we have been discussing this this, just an updated article for all that may need it.

 

[believe09]

Desquire can weigh in here, but I dont think he has to prove the allegations in the ro since she waived her right to dispute it. She is looking for a modification of the order-she still isnt contesting what he wrote. Or Rackner wrote on her behalf.

 

[Calliope]

I wont speak for puf, but I believe that puf is bouncing off of my post regarding Kaine gathering his data to support his postition as sole custodian of Baby K. And being the decision maker and his fitness to be that decision maker.

Again, what is so all fire important now that wasnt a few months ago? Why should Kaine have assumed she would get a bee in her bonnet to want parenting time with Baby K out side of moving forward with the normal discovery process involved in a custody dispute?

Kaine shouldn't necessarily have assumed she'd want to pursue a modification of the parenting time, but his attorney should have been well aware of what the statutes allow regarding this and that this was a distinct probability and prepared for it long ago. That's, well, her job. That was my point.

 

[Calliope]

Desquire can weigh in here, but I dont think he has to prove the allegations in the ro since she waived her right to dispute it. She is looking for a modification of the order-she still isnt contesting what he wrote. Or Rackner wrote on her behalf.

So why "Kaine will have the time necessary to depose witnesses and accumulate evidence to support his position"?

In order to convince the judge that Terri shouldn't be allowed what is permitted by law, then he will have to address the allegations he made. Simply stating "she's evil incarnate, take my word for it" (paraphrased) won't suffice.

IMO

 

[believe09]

Well I agree that it would seem it was her job. Or it could have been her job to know this was coming and purposely not prepare a head of time in order to smooth the way for TH and instead taking steps to defend her client against what he clearly deems to be a dangerous situation for his child.

 

[believe09]

So why "Kaine will have the time necessary to depose witnesses and accumulate evidence to support his position"?

In order to convince the judge that Terri shouldn't be allowed what is permitted by law, then he will have to address the allegations he made. Simply stating "she's evil incarnate, take my word for it" (paraphrased) won't suffice.

IMO

This is not a prove the RO battle-she wants a modification to the only order that currently does not allow her to see her child.

He needs to get friends and family to write statements regarding what kind of parenting they have witnessed, he needs time to accumulate medical records for himself and Baby K, he would also normally be allowed to invoke some kind of discovery regarding TH's medical records, financial records, issue interrogatories etc. And she for him. Standard stuff.

She wants a hearing expedited because she said so.

TH was the one who chose to let the RO stand, and she is now looking for a simple modification that bypasses the normal discovery in a custody battle-she is the one letting the allegations stand. Not Kaine.

 

[pufnstuf]

bbm

Regarding these comments about all the time Terri had to contest, request a modification, etc.

Well, time hasn't stood still for the rest of the world in the meantime. Ms. Rackner has had the same time to prepare her case against Terri. IMO, if his attorney didn't consider and prepare for that distinct probability (as she should have been aware what the law allowed Terri to do with regard to parenting time), then she's not representing his interests very well at all. I'm not sure I'd want an attorney who could be so easily blind-sided by something that's clearly spelled out in the statutes.



He made some damned serious allegations in the RO application and motions filed since. Why would you think he doesn't have evidence to support those allegations?

Let's review what has transpired over the past several months.

In late June, Kaine found out that his wife not only tried to hire someone to murder him, but also quite likely was involved in his son's disappearance. So he filed for a FAPA restraining order and for divorce.

The respondent in the RO matter did not answer the restraining order matter within the mandated 30 days. The FAPA RO was granted.

Then,Terri stated via her attorney that she'd give Kaine the divorce, but wanted the custody and property matters bifurcated and abated to a later date... at least two years as Bunch requested, to be precise.

On October 7, Terri appeared in court, still wishing for the abatement of the custody matter in the DIVORCE proceeding. The judge, refusing to abate the divorce (custody matter included) for two years as Bunch had requested, set the hearing for January.

At the end of court, Bunch said that he'd actually do opposite what he had asked for in earlier statements: he'd seek a more immediate amendment to the custody matter than HE HIMSELF had stated that his client would be satisfied with--at least two years.

One week later, Terri filed for a modification to the restraining order.

Keep in mind, her attorney had requested that the custody matter associated with the divorce proceeding be delayed for "at least two years." He went to court still stating such. Then when the judge refused to abate for two years, Bunch suddenly changed his mind and stated that it is important for Baby K to see her mother, and he'd file to amend the current custody order--which was declared in the RO.

Why would he then file to modify the custody matter under the restraining order in expedited fashion when under the divorce proceeding he claimed that he wanted the matter delayed for at least two years. Any small gain that Terri gets with the modification to the restraining order will be subsumed by the custody order that will come with the divorce.

If any lawyer's actions in this current quagmire need be questioned, I say it's Bunch's.

I am sure that Laura Rackner has witnesses. But having witnesses and subpoenaing and deposing those witnesses are two different matters. And to subpoena and depose, you must have an action at hand about which to subpoena and depose. Considering that Terri's attorney has been almost schizophrenic in his statements and filings, I'm sure that Rackner has been prepared to pass out subpoenas as soon as the latest Bunch action was filed. It speaks nothing to her lack of preparation that she can't subpoena and depose until there is an action before the court about which to subpoena and depose.

Now that there IS a custody action before the court, I am certain that Rackner is preparing to depose in response.

 

[Calliope]

Well I agree that it would seem it was her job. Or it could have been her job to know this was coming and purposely not prepare a head of time in order to smooth the way for TH and instead taking steps to defend her client against what he clearly deems to be a dangerous situation for his child.

Huh ?

Not being prepared is what could smooth Terri's path to getting parenting time.

 

[gwenabob]

This is not a prove the RO battle-she wants a modification to the only order that currently does not allow her to see her child.

He needs to get friends and family to write statements regarding what kind of parenting they have witnessed, he needs time to accumulate medical records for himself and Baby K, he would also normally be allowed to invoke some kind of discovery regarding TH's medical records, financial records, issue interrogatories etc. And she for him. Standard stuff.

She wants a hearing expedited because she said so.

TH was the one who chose to let the RO stand, and she is now looking for a simple modification that bypasses the normal discovery in a custody battle-she is the one letting the allegations stand. Not Kaine.

Everything you just said above, except interrogatories. Oregon doesn't allow interrogatories.