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

[gitana1]

BBM

This was almost exactly the situation my husband faced with his ex-wife. She abducted their son (he had primary custody), disappeared him for over six months and then had to take him to an ER when he was non-responsive and in respiratory arrest from abuse he suffered in her custody.

In other words, he was about as close to dead as a child can be. If she had been delayed by even three minutes in getting him there, the doctors told my husband his son would have been dead.

As it was, his son had a major skull fracture plus bruises and third degree burns all over his body. Little round burns, exactly the size of a cigarette. His mother said that it was her second husband.

She was charged and plea bargained down the charges to custodial interference and neglect, served time in prison and was then released. When she was released, this woman convicted of custodial interference went back to court to try to get joint custody!

The judge did not grant her joint custody but ruled that it was in her son's best interests that she have X hours of supervised visitation per week, at a certain agency. That agency had armed guards and a social worker who stayed in the room with mother and son for the duration of every visit and who had the authority to stop her or remove her from the premises if she did anything that might be harmful to her son.

This was not someone my husband merely "believed" had hurt his son. This was a woman who had been convicted in a court of law and served time in prison for doing so.

The child therapist that was treating his son told my husband that in her opinion, having a limited and carefully supervised relationship with his mother would be good for his son. That children suffer when their relationship with one parent is cut off, even if that parent never had primary custody in the child's entire life. Sometimes the severing of the relationship is inevitably permanent (death of parent, for instance) but if it does not have to be permanent, why put the child through unnecessary pain?

So my husband did what I believe a good parent does: sucked it up, set aside his personal feelings of betrayal and distrust, made sure to deliver his son on time for visitation as ordered.

All went well for several months. His mother would have had to get away from a social worker, make her way through an airlock entrance past armed guards to get away with her son. So her next attempt to abduct him came when she showed up at my husband's home (which violated her RO and conditions of parole) to try to talk him into allowing her to take their son to MacDonalds for a special treat. My husband adamantly refused and threatened to call the police.

She disappeared. Her family has not heard from her in the 30+ years since then, despite hiring several PIs.

Last Mother's Day, I talked to my stepson on the phone. He made me cry because he told me that all his life he has been convinced that his mother disappeared because there was something so bad about him that she could not love him. And that discovering I loved him made him feel better, like maybe there was some hope for him after all.

I believe that is one of the kinds of pain that his therapist was trying to warn my husband about so many years ago. That his son was at risk for feeling unlovable, like a bad kid, if his mother just disappeared out of his life.

Sadly, that's exactly what she chose to do.

To answer your question then: my husband chose to put his son's best interests ahead of his own feelings once he had been assured that to do so would not expose his son to any danger from his mother.

Isn't that what good parents do? A good parent watches the pediatrician put a needle THAT BIG into their baby's tender flesh in order to protect them from diseases. That first day of preschool or kindergarten, a good parent shows up and acts happy and excited for their child, then goes back to the car and weeps a bit at that first passage to eventual adulthood.

A good parent understands that their child's emotional well being has to come before their own desires to wrap them up in cotton wool and keep them in a bubble until age forty... or so.

Thanks for this. I might print it up and give it out to my clients!!

 

[germaine]

Not really. One issue pertains to the disclosure of finances and when that must be done (pre-trial) and the other deals with allegations of DV and the details of that must be disclosed at trial, not before.
TH would be entitled to those details if she had chosen to contest the RO. Allegations do not stand on their own unless the other party fails to contest them in any way.
However, TH could in fact have asked for a continuance and served discovery (requests for verified information) on KH to determine what evidence he actually has, prior to the hearing. I've done that before. Not sure why they didn't.

Thanks gitana. The bold was a question mark for me. I wasn't sure whether Bunch/Houze would have to fly blind at the RO hearing or not. Or such continuances routinely granted?

 

[Bluestars]

Right, but TH is entitled to discovery responses from KH. Not LE, but KH. So, I would want to know whether he actually has evidence backing his allegations, if I were TH. Again, yet another step she could have taken that she inexplicably did not.

Do you think that she didn't take this step because she knew he had evidence against her?

 

[germaine]

Do you think that she didn't take this step because she knew he had evidence against her?

not gitana, obviously but there are only two possibilities, imo She didn't do anything, so there can be no credible evidence against her, or she did and knows what that evidence might include. The only real question is whether le has it and gave it to KH's lawyer. I think it's the latter and neither she or her lawyers were willing to take a crap shoot to confirm what le/kh have or what they don't. I also think they firmly believe that le and kh do have the evidence. jmoo

 

[Billylee]

IMO, there is something about her stories that are not adding up for LE and that is why she is a target. I believe that it is more likely than not that there is a good foundation for the suspicion.
So, while she may have been cooperative, it is reasonble to assume that something of what she told them is not truthful or directly honest.

There is no doubt in my mind that she cannot answer the same questions that she was extensively asked when she was fully cooperative early on with the same answers today.
JMHO of course.

Just curious but would you say the same thing about Dede Spicher and that's why they focused on her, because her story didn't add up and they have/had a good foundation for their suspicions?

 

[JBean]

Just curious but would you say the same thing about Dede Spicher and that's why they focused on her, because her story didn't add up and they have/had a good foundation for their suspicions?

I have to be 100% honest and say i have not followed the information regarding DeDe Spicher. Consequently, I cannot comment as I do not have a clear understanding as to what capacity it is that they focused on her.
But i think we might be OT here.

 

[Calliope]

(respectfully snipped)
However, TH could in fact have asked for a continuance and served discovery (requests for verified information) on KH to determine what evidence he actually has, prior to the hearing. I've done that before. Not sure why they didn't.

Didn't Bunch indicate to the court that they in fact had asked repeatedly for this, only to be told that they would not get that information because it was part of an ongoing investigation?

 

[gitana1]

As an attorney, gitana, would you make your own judgment as to whether TMH was innocent or guilty? Or would you rely solely on TMH's assertion of innocence?

In other words, is it possible that TMH's attorneys are proceeding as if she is guilty, regardless of her own assertion of innocence?

Criminal attorneys, or so I've heard, do not ask their clients if they are guilty. I ask my clients all the time if the allegations are true or not (DV, child abuse, whatever). I gauge their credibility based on their demeanor, how they respond to the allegations and based on the evidence. So I base it mostly on my own judgment and not on their words alone.

 

[gitana1]

Well, he persuaded the judge. So I guess that's all that matters.

We don't know that he has. That motion was not heard. It is to be heard after the abatement.

 

[gitana1]

Gitana..... please weigh in. I could swear somewhere you said the abatement stopped all motions in family court. If so how can the RO be now reopened for visitation for K. Thanks.

Sorry I'm late! Busy weekend.
The RO is separate from the dissolution of marriage. It has been completed but can be modified. It is not a part of the divorce (and to my knowledge, has not been consolidated with the disso - different case numbers).

 

[gitana1]

Thanks gitana. The bold was a question mark for me. I wasn't sure whether Bunch/Houze would have to fly blind at the RO hearing or not. Or such continuances routinely granted?

If the person who has had an emergency protective order issued against them is doing the requesting, then yes. Continuances are not granted to the protected party normally, unless the restrained party agrees.

 

[gitana1]

Do you think that she didn't take this step because she knew he had evidence against her?

Yes, I do.

 

[gitana1]

Didn't Bunch indicate to the court that they in fact had asked repeatedly for this, only to be told that they would not get that information because it was part of an ongoing investigation?

I do not believe discovery was served on KH. I may be wrong but if they failed to respond with the requested information, the next step would be a motion to compel those answers. I think TH's attorneys were stating that LE was refusing to give them certain information.

 

[GrainneDhu]

Criminal attorneys, or so I've heard, do not ask their clients if they are guilty. I ask my clients all the time if the allegations are true or not (DV, child abuse, whatever). I gauge their credibility based on their demeanor, how they respond to the allegations and based on the evidence. So I base it mostly on my own judgment and not on their words alone.

Is it fair for me to assume that you then formulate what you believe to be the best legal strategy based on your judgment of your client's credibility?

I understand that clients are not forced or obligated to follow their lawyer's advice (no one can keep a person from being a fool) but I think the average person doesn't know enough about the law to fully understand all the considerations that go into recommending a certain course of action or all the ramifications possible of following that course of action.

If they did, they'd be lawyers! And they'd still be fools if they were personally involved in a criminal or civil suit and didn't have their own lawyer.

 

[citigirl]

I do not believe discovery was served on KH. I may be wrong but if they failed to respond with the requested information, the next step would be a motion to compel those answers. I think TH's attorneys were stating that LE was refusing to give them certain information.

Couldn't the hearing proceed with Bunch just asking Kaine what he knows? What LE told him? That is a matter of public record now. I suppose it would be nice to verify if it was the truth. But if f it turns out that LE lied to Kaine, the visitation/custody order could be amended at that time. Isn't that better than continuing to put off the divorce? Or granting a long abatement?

And does not set some bizarre precedent that other couples and LE will face as a result of this unusual case?

 

[Aedrys]

I do not believe discovery was served on KH. I may be wrong but if they failed to respond with the requested information, the next step would be a motion to compel those answers. I think TH's attorneys were stating that LE was refusing to give them certain information.

You know, that's a good point. So what you're saying is that they asked, but didn't serve supoenas or do anything legal like a motion to compel LE to give them information? I'm trying to understand what happened here. If they just called and asked and LE, who said no, and they never did try to get a court order for that info, then they have no right to whine about not getting information.

And part of me is glad to see that they aren't treating motions like candy just yet (like another lawyer in another big case), but why complain about not getting info when they never wrote a motion for that info? If it's so important, it seems like they would have taken more steps than just asking for the information. That's if I understand what happened correctly.

 

[believe09]

You know, that's a good point. So what you're saying is that they asked, but didn't serve supoenas or do anything legal like a motion to compel LE to give them information? I'm trying to understand what happened here. If they just called and asked and LE, who said no, and they never did try to get a court order for that info, then they have no right to whine about not getting information.

And part of me is glad to see that they aren't treating motions like candy just yet (like another lawyer in another big case), but why complain about not getting info when they never wrote a motion for that info? If it's so important, it seems like they would have taken more steps than just asking for the information. That's if I understand what happened correctly.

BBM-because like the attorneys in that other big case, they are trying to create a certain image. Like, here we have our client who is willing to divorce this man but not to make statements that might self incriminate. Naturally we want to explore the nature of the evidence against her in order to best determine our course of action, but LE will not play ball.

Gitana can weigh in, but while TH's attorneys can file subpoenas, LE can certainly file for protective orders and will likely be granted a protective order so they do not have to share. JMO

 

[believe09]

Criminal attorneys, or so I've heard, do not ask their clients if they are guilty. I ask my clients all the time if the allegations are true or not (DV, child abuse, whatever). I gauge their credibility based on their demeanor, how they respond to the allegations and based on the evidence. So I base it mostly on my own judgment and not on their words alone.

So do you do mostly civil cases? IIRC, most criminal attorneys will not ask their clients if they are guilty because should that client testify, the attorney is an officer of the court first and foremost-so if their client lies on the stand, the attorney would have to report the perjury. For example, if someone confessed to a murder and then took the stand stating emphatically they did not do it, the attorney would have to turn them in.

 

[germaine]

BBM-because like the attorneys in that other big case, they are trying to create a certain image. Like, here we have our client who is willing to divorce this man but not to make statements that might self incriminate. Naturally we want to explore the nature of the evidence against her in order to best determine our course of action, but LE will not play ball.

Gitana can weigh in, but while TH's attorneys can file subpoenas, LE can certainly file for protective orders and will likely be granted a protective order so they do not have to share. JMO

I think gitana was saying the discovery would be served on and responded to by KH, not by LE. If I understand correctly, the discovery would be of the information that KH relied on in support of the RO. If he doesn't produce it for whatever reason, and identify the witnesses he will call to substantiate it, I think he would lose at the hearing since he wouldn't be able to prove his case. If he does produce it, then Bunch and Houze will be prepared to respond.

I agree with whoever said bunch was just trying to bolster his position with the lack of LE cooperation (paraphrasing). He's been deliberately barking up the wrong tree and complaining about it. I'm sure the judge gets that, though. Imo, he's doing the same thing with the LS. The LS info may not be at WS, but it is all over the place otherwise. Not to mention that his own client can identify the guy and probably at least knows the name of his business and what he looks like. If Bunch really wanted to serve him with a subpoena, he could find him easily, imo. He's saying he asked LE and LE wouldn't tell him becuase it's true and supports his position of being hamstrung, but it's superficial. If would be nice for him if LE told him where to find LS, but certainly not necessary and the only way he could find him. jmoo

 

[desquire]

True, 10 months and life are far different. But, this is not merely a temporary restraining order we're talking about. See, I'm looking at it more, I guess, from a family law perspective, not criminal. All I see are clients who either fight hard for contact because it's in their kids best interest or fight hard for contact cause it's in their own best interest. My clients are parents - moms and dads. And the only ones I have seen ever give up their kids (contact and/or custody), in the manner TH has, are ones who are mentally ill or guilty of the allegations against them. These people otherwise fight like mad for their kids even in the face of amazing allegations.
From that perspective, 10 months (when dealing with an infant), is an eternity because that sets up a status quo that is prejudicial to TH's right to parent her baby, and that prejudice against TH lasts much, much longer than 10 months. It extends to every subsequent custody determination by the court.
So what she has allowed to happen here is to set up a situation where long after the RO has terminated (10 months from now, assuming KH does not petition to have it extended, which he can), her rights to custody of Baby K have been seriously prejudiced. As I've said before, in my professional opinion, based upon a review of OR family law, the only way she would get custody at any time in the future is if KH agreed or if he was proven to be an unfit parent at some point. Her decision not to contest the "temporary" RO has permanent implications when it comes to custody of and rights, to her child.

If this were an ordinary, run-of-the-mill, divorce where the restrained parent fails to contest because of laziness, indifference, or some other pathetic non-excuse, I would agree with you 100%. They get a big fat fail on one of the principal criteria in any custody decision. But this is far from an ordinary case and I don't think there is any competent judge out there who would not understrand TH's situation and strategy.

But, as you know, I don't practice criminal law and this case is really a crossover. So let me ask, Desquire, how would failing to answer questions in a civil case (pleading the fifth) about her unverifiable alibi, aid in the criminal investigation against her or otherwise implicate her criminally? I mean, hasn't failing to contest the RO at all basically done the same thing
as pleading the fifth would do? At least if she tried to fight the RO and gain some contact with her baby, by forcing KH to prove his case and while pleading the fifth, she would have had some chance at seeing Baby K. Not doing anything at all, she has none.

Again, you can't look at this as an ordinary case, you have to take into account the high public/media interest and the damage that negative coverage can have to an accused's defense. Sure, she can plead the 5th and probably not aid the prosecution. Maybe they could learn something from the questions she declines to answer but it's unlikely. The bigger risk are the headlines: "Terri pleads 5th When Asked About Day Kyron Disappeared." Look at all the damage that has been done to her by the bad press so far, the majority of the public are convinced she's guilty and ready to burn her at the stake - and that's based things that are tangential to the Kyron case, at best. Think about the impact on potential witnesses.
A circumstantial case depends on the inclination of the jury to connect the dots and make the inferences that the prosecution wants them to. Juries are much more likely to follow the prosecutor's logic when the accused is an unsympathetic, unlikeable individual. No matter how much a juror believes they can be impartial in spite of what they've heard on the news, we all know it factors into their deliberations at some level. That's what Houze is concerned about - every negative news story raises the bar he needs to clear one notch higher.
So do the likely benefits outweigh the risks? Any contest of the RO will necessarily involve arguing the MFH and Kyron allegations. The chance of this happening without Rackner putting TH on the stand is zero (KH has already said that this was more about getting TH to talk than anything else.) If TH gets on the stand and has to take the 5th on questions regarding either subject, the judge will likely make a negative inference of fact. Why contest in the first place when you know you've got both arms tied?

Again, if this were an ordinary case with no media attention and no potential capital crime, I would be with you all the way in your analysis.