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

[gitana1]

Sorry for butting back in here, but there's just so much misinformation flying around that I couldn't help myself.

Parenting time is frequently granted (to people who have been proven to have done really bad things) without any type of evaluation or hearing at all. What Kaine was asking for would have been well outside the norm.

Respectfully snipped by me for space. I agree with pretty much everything in your post except the part I quoted above.
What Kaine is asking for - discovery, possible child custody evaluation - this is par for the course when there are horrible accusations flying around. I see these evals being ordered routinely. I ask for them often. They are not at all out side the norm, in my experience.
Yes, many people who do bad things are given parenting time without an eval but depending on the "bad things" it is often only supervised visits. Further, it is very, very rare for there to be accusations in child custody cases rising to the level of what are essentially murder accusations. This case is very different than most. The seriousness of what is being alleged absolutely, IMO, supports a possible eval and at the least, discovery. I have seen many, many parents requesting and being granted evaluations after making allegations much less serious than the ones I see here.

 

[Donjeta]

Even Bunch appeared to be expecting and acknowledging that evaluations were necessary in determining parenting time. It was one of his reasons to file for the abatement. He wrote "Further, it is likely that the resolution of custody and parenting time will require an evaluation by a competent psychologist. Such evaluations are broad in terms of the information the evaluator requires from each parent. The evaluator must have the opportunity to interview each parent, as well as collateral sources, and to see the parents interact with their minor child."

http://images.bimedia.net/documents/terri+horman+abate+divorce.pdf

 

[gitana1]

Yes, litigate. I didn't think I had to use the legally appropriate term foe the point of the post to be understood and not taken to task based on semantics. But that is all cleared up now.

Are you suggesting that Kaine nor Terri would have to file a motion to modify the restraining order in order to have this matter resolved? Are you denying that the judge could and does have discretion not to accept any terms that Kaine and Terri arrive at on their own? According to the statutes for filing and obtaining an FAPA RO in Oregon, a custody agreement can only supercede an FAPA RO if the two matters have been combined and if both parties have been informed of such. As I recall, none of those two things have happened, right? If that is the case, the RO modification would still have to be taken care of (or expire) before any custody arrangement can be honored. Jmo

eta: Add link and correct spelling.

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

In California, the RO must be modified to change child custody orders within it. That can be done via a motion to modify or in the context of a disso that has been consolidated with the RO (thereby modifying the RO), and child custody orders can also be stipulated to that will take effect after the RO expires. I assume OR is pretty much the same.
However, judges would not get involved in the terms of settlement parties' come up with. This is not a juvenile dependency case.

 

[gitana1]

It's a structural engineers job to build buildings. If his design harms someone, he's held accountable. If a surgeon operated on Baby K and made a mistake, he would be held accountable. If a child drowns in a pool...the homeowner can be accused by an attorney of possessing an "attractive nuisance." Maybe a murderous Mother is an "attractive nuisance" for a 2 year old?

They are trying to force this...without any safeguards that would exist in an ordinary divorce.

Why shouldn't Terri's lawyers be held accountable if, in doing their job, they cause great emotional harm to Baby K?

I don't understand why they cannot be held to the standard that their livelihood imposes on everyone else?

Because their duty of care is to the client, not the child. However, if they knowingly put forth information or facts or allegations they know are false, in an effort to secure something for their clients, that is an ethical violation and they will be held responsible for that violation.

 

[gitana1]

I know this has been posted several times before by legal experts here, but I'll say it again: Kaine cannot legally dismiss the RO on his own and TH cannot expect him to "work around" it without legal ramifications.

If he bends the rules by "negotiating," then he might lose future leverage over the fate of his daughter and it doesn't seem that he is willing to step into that legal trap.

No. Kaine actually can have the RO dismissed on his own. he can go into court and ask that it be dismissed. It happens.

 

[Trt]

No. Kaine actually can have the RO dismissed on his own. he can go into court and ask that it be dismissed. It happens.

According to what I've read in the OR statutes, he'd have to file a motion and explain what has changed since he first filed correct? He judge has the ability to deny that request as well; right?

Also, what do the statutes refer to when saying that the domestic relations order can only supersede the RO if the two cases have been combined and if the non-moving party is made aware of the combination? TIA

 

[gwenabob]

No. Kaine actually can have the RO dismissed on his own. he can go into court and ask that it be dismissed. It happens.

Yes, but wouldn't a judge think twice should Kaine ask for a new RO against TH in the future?

 

[mmmagique]

I think he can file something to desolve it though. They would first need to decide to give T visitation, then it's likely a legal formality.

Also, when does it expire?

Either way, I'm sure both parties know how to handle it, else the conversations wouldn't be taking place.


You know - I'm not sure this goes here, but something else jut struck me as, hmmmmm...

According to Kaine:

Terri was so strict with Kyron that she wanted Kaine to discipline him when he got certain marks at school.

Terri was so rigid that Kyron was not allowed out of his room until Terri gave him the all clear.

Terri was so neglegent in her parenting that baby-K didn't have a bedtime structure...and she was drunk most of the time.

All three of these statements are pretty extreme...but they are extreme in opposite directions. 2 say she was very controlling, the other says she was virtually absent in her role as a parent.
I'm not sure where this goes, likely not here...but didn't know where else to put it.

Except those things are not mutually exclusive. One can be overly controlling at times, and "lazy" at times. Especially if one is under the influence of drugs or alcohol.

 

[grandmaj]

I think he can file something to desolve it though. They would first need to decide to give T visitation, then it's likely a legal formality.

Also, when does it expire?

Either way, I'm sure both parties know how to handle it, else the conversations wouldn't be taking place.


You know - I'm not sure this goes here, but something else jut struck me as, hmmmmm...

According to Kaine:

Terri was so strict with Kyron that she wanted Kaine to discipline him when he got certain marks at school.

Terri was so rigid that Kyron was not allowed out of his room until Terri gave him the all clear.

Terri was so neglegent in her parenting that baby-K didn't have a bedtime structure...and she was drunk most of the time.

All three of these statements are pretty extreme...but they are extreme in opposite directions. 2 say she was very controlling, the other says she was virtually absent in her role as a parent.

I'm not sure where this goes, likely not here...but didn't know where else to put it.

Red is Kyron=Rigid her step child

Green=K her birth child.

Sad to say they were in fact according to Kaine treated differently.

 

[gitana1]

Yes, but wouldn't a judge think twice should Kaine ask for a new RO against TH in the future?

Yes. It could definitely prejudice a future RO request. However, there is likely little chance of KH dismissing his RO or even agreeing to any kind of visitation, don't you think? So we probably don't need to worry about that.

 

[mmmagique]

Well it matters in a way, because TH states she is trying to work out acceptable visitation, but that KH refuses to negotiate it.

I don't know if either of those things are true...but the fact is that if Kaine is not willing to consider K's needs then it does reflect badly on him...but that apparently not evryone agrees on. I don't think it's really a matter of opinion, I think it's a matter of fact, one that only a professional can state...

this seems impossible to determine though, since Kaine won't even entertain the idea (according to the document)...

In my mind that's not a good thing.

We probably could go in circles all day about it though...so I'll leave it at that.

I'll just start praying that all involved truely ARE considering all baby-K's needs and will consider all possibilities to meet them, whatever it may take to accomplish.

He's willing to talk about it in court.

Is she?

 

[gitana1]

According to what I've read in the OR statutes, he'd have to file a motion and explain what has changed since he first filed correct? He judge has the ability to deny that request as well; right?

Also, what do the statutes refer to when saying that the domestic relations order can only supersede the RO if the two cases have been combined and if the non-moving party is made aware of the combination? TIA

Oh, I haven't seen that. Usually courts don't want to get in the way of parties resolving matters without court intervention but if there has been some political outcry about domestic violence, perhaps that lead to some changes with the law. I'll take a look!

 

[gitana1]

According to what I've read in the OR statutes, he'd have to file a motion and explain what has changed since he first filed correct? He judge has the ability to deny that request as well; right?

Also, what do the statutes refer to when saying that the domestic relations order can only supersede the RO if the two cases have been combined and if the non-moving party is made aware of the combination? TIA

Oh, I haven't seen that. Usually courts don't want to get in the way of parties resolving matters without court intervention but if there has been some political outcry about domestic violence, perhaps that lead to some changes with the law. I'll take a look!

Okay, so I took a look. Here's what I found:
What if I want to drop (dismiss) my permanent restraining order?

If you want to drop your restraining order, you need to go back to the court that issued your order and fill out dismissal papers (the court can give you these papers for free). You may have to talk to the judge and tell him/her why you want to drop the restraining order. Different judges have different ways of handling these requests. Some judges will ask you lots of questions, but other judges will just sign the dismissal order without asking you anything.

In some counties, the judge will tell you to go to a class with other domestic violence victims before the judge agrees to drop the order.

In some cases, the judge will try to help you figure out whether there is a way to modify (change) your order so that it can still give you some protection from abuse, but so that you can have the contact you want with the abuser


http://www.womenslaw.org/laws_state_type.php?id=577&state_code=OR&open_id=11654#content-4188

So it looks like you are right. Some judges do not allow a dismissal so easily. Some judges actually require an appearance and reasons why the dismissal is being requested. I like that. I think it helps to protect abused spouses who often, for whatever reason, put up with abuse and allow themselves to be swayed by their abuser.

Also, I see another question you asked earlier. A dissolution case cannot supercede an RO. ROs are taken very seriously. The cases can be consolidated though and that creates a forum in which RO's can be more easily modified, since the disso proceedings may already be on calendar. So, let's say you have an RO and then a disso and the RO is heard first. Later, the cases are consolidated and one party requests child custody orders in the context of the disso. Well, if the RO already addressed child custody, the court usually just adopts the RO orders as to custody or modifies those orders, if the parties agree or there is a compelling reason to do so, but the RO does not disappear. In CA, a disso judgment will state whether any RO is in existence, right at the top of the page, thereby incorporating the RO, even if the cases have not been consolidated.

 

[Trt]

Thank you very much for looking that up and explaining it in lay terms gitana!

 

[GrainneDhu]

If baby K was traumatized by anything she my have witnessed - it would have been apparent long before the seperation.

I understand your frustration, but think about the specifics here...

If there was a greusome crime, there would have been evidence of it. (by greusome I'm assumng you mean violent, brutal, bloody, gory, scary, etc).

and

Whatever happened (if Terri is directly responsible) likely happened AFTER she went to FM, so likley the baby was out from the meds she purchased.

I'm not at all saying that IF Terri is responsible AND baby-k was not an eye-witness that it should be flatly ignored...just saying that baby-K probably doesn't know how to distinguish the difference between J's dissapearance & Kyron's.

She is too little.

And now as far as she knows, Mommy dissapeared too.

These are SERIOUS changes, and those, until she can emotionally process it, need to be managed carefully.

It's not about Terri being seperated or being rewarded with visitation. It's about the baby's needs for connection to her mom. And no random other female will due, because she knows who her mom is and who her mom isn't. It's an emotional thing, not a role model thing.

But as has been said above...this is all for the experts to carefully figure out...and it IS irrelevant what happened to Kyron. This is about K's emotional deveopment, not Terri or anything she may have done.

And when I say that, I'm not saying that this is the decions...I'm saying that this is how a child advocate will view it. They will look directly at the baby's needs. And after that consider Terri's stability. As I understand it...short of psycho-violant-maniac, which from a 2yo's perspective means almost nothing, it's mainly the bond.

It's just that important to K to not feel abandoned...because that is what can shape her emotional development in ways that will follow her for the rest of her life.

BBM

I agree with your entire post, particularly about the reasoning as to what may have happened on 4 June.

When my stepson's mother was granted supervised visitation in a safe facility, the first visit took place nearly two years after he'd last seen his mother. He was nearly four years old.

The social worker reported that he clearly recognised and welcomed his mother. When she came into the room, he jumped up, ran over to her, hugged her, called her Mommy, etc. A very different welcome than the one he gave the social worker, who was a relative stranger to him.

My stepson's mother chose to abandon him when she could not abduct him again. He is still suffering for her decision. I didn't meet him until he was sixteen years old, so I could not and cannot fulfil that role for him, much as both of us might want that. The parent/child bond is not built of will power, it grows through continued interaction and contact.

Without that interaction and contact, a child is at grave risk.

No, therapy will not "fix" it. My stepson was in therapy from two years old to sixteen years old (when he refused to go any longer). Did therapy help? Yes, I think so but it certainly did not make him whole or normal.

 

[GrainneDhu]

The problem I see given Terri's personality is that every she might cause some huge drama during visitation. That wouldn't be good for the baby, in my opinion.

SBM

When the court granted my stepson's mother supervised visitation, my husband was concerned she would create huge drama. In his experience during their (brief) marriage, she was capable of creating huge scenes.

He was assured that one of the roles of the person actually supervising each visitation was to prevent any such drama. The visitation supervisor had the power to control her behaviour via suggestions or orders and ultimately by removing her from the room if she created a scene.

In six months of visitation, she had to be removed once from the room (it was during one of the early visits). After that, there were no scenes, no drama.

My husband tells me that my stepson seemed perfectly normal each time he picked him up after a visit with his mother.

This was around 30 years ago. I doubt that supervisory skills have declined in the time since then.

 

[GrainneDhu]

No. Kaine actually can have the RO dismissed on his own. he can go into court and ask that it be dismissed. It happens.

In my state, what happens fairly frequently in the cases where one party has a RO against the other party in a divorce, is that the lawyers for each side get together to see if they can negotiate modifications to the RO that are acceptable to both sides.

If they can come up with such an agreement, then they go to court, submit the agreement to the judge and the judge rules on it.

The judge almost always goes with the negotiated agreement.

None of the above is considered a violation of the RO. What would be a violation would be if one party contacts the other party directly. If the petitioner agrees to talk to the respondent directly, that usually voids the RO.

Is this how it works in California? and by extension, Oregon?

 

[gwenabob]

In my state, what happens fairly frequently in the cases where one party has a RO against the other party in a divorce, is that the lawyers for each side get together to see if they can negotiate modifications to the RO that are acceptable to both sides.

If they can come up with such an agreement, then they go to court, submit the agreement to the judge and the judge rules on it.

The judge almost always goes with the negotiated agreement.

None of the above is considered a violation of the RO. What would be a violation would be if one party contacts the other party directly. If the petitioner agrees to talk to the respondent directly, that usually voids the RO.

Is this how it works in California? and by extension, Oregon?

"By extension, Oregon? You mean like Oregon is just a part of California? :waitasec:

 

[GrainneDhu]

"By extension, Oregon? You mean like Oregon is just a part of California? :waitasec:

Legally, Oregon is more similar to California than it is to, say, North Dakota since Oregon and California both fall under the jurisdiction of the 9th US Circuit Court of Appeals. I believe that gitana has mentioned that she practises in California (if I am mistaken, my apologies!).

As I understand it, lawyers are more likely to use decisions from within their particular court of appeals in their arguments, since those are considered most directly applicable. So the jurisdictions within each US Circuit Court of Appeals is more like themselves than they are each other.

Hm, that read in a very confusing way. A jurisdiction that falls within the 1st US Circuit Court of Appeals is more likely to be similar to another district that falls within the 1st than it is to be like a jurisdiction that falls in the 5th Circuit Court of Appeals in terms of legal details.

 

[Trt]

According to Oregon statutes that I've read, in order to modify an FAPA RO, either party must file for a hearing. The two parties can come to an agreement which the judge can choose to fully accept, accept with changes, or deny completely.

So Terri withdrawing her motion for modification and her lawyer's suggestion that she is going to still try and get visitation without litigation is disingenuous, IMO. Whatever happens between her and Kaine(which he has no motivation to work out an agreement with her outside of court), she (or he) would still have to file another motion to modify the order and the agreement could still be denied by a judge. Which means they may still have to litigate in some form. Jmo