Questions for our VERIFIED LAWYERS*~*~*NO DISCUSSIONS*~*~*

[desquire]

:blowkiss: to AZlawyer and desquire

The sexting was in the contempt for RO document, in the affidavit by Rackner (Kaine's attorney) to show cause for the contempt. Kaine dropped that. Does that mean we take sexting off the table?

http://www.koinlocal6.com/media/lib/107/b/2/c/b2c0c26c-4221-4fde-a923-fa5788b1ad69/Horman.pdf

Thank you!

Depends on which table you are talking about. Arguably, the sexting was irrelevant when brought up in the context of the contempt. The only real issue there was whether TH disclosed the contents of the RO to someone not authorized to access it. The judge would not have cared whether TH had a sexual relationship with the person or he was a complete stranger. So the sexting was never really "on the table" in the legal sense. Had there been a hearing on the contempt motion and had Rackner tried to introduce anything about the sexting, you can be sure Bunch would have objected before she even finished her sentence and the judge would have cut off any testimony or inquiry going down that path.

That said, I think it is fair game for KH to raise it in connection with the eventual custody decision, so we probably haven't heard the last of it.

 

[desquire]

One more question - okay, so she might get supervised visitation. Is she also going to have to pay for it? Is it normal to ask for the other party to pay for such a thing? What are the odds that the judge will grant supervised visitation but make Kaine pay for it?

Okay, so that was three questions relating to the same thing, lol.

That might be 4 questions.
Is she going to have to pay for it? The judge has pretty broad discretion in deciding this question but here is one of the first places where TH's failure to contest the RO will bite her. Since she failed to contest, the judge has to view her as a domestic abuser. In most cases the domestic abuser pays the costs of any supervised visitation although under some circumstances the judge may order the costs to be split.

Is it normal to ask for the other party to pay for such a thing? Including a request for the other party to pay your client's costs is almost as second-nature as breathing to lawyers in almost any type of situation. It never hurts to ask and, if you don't ask, you can't get.

What are the odds that the judge will grant supervised visitation... Pretty good.
... but make Kaine pay for it?
Slim.

 

[Pensfan]

Sending a sincere thank you to all of the attorneys that interpret on WS.

Last month I found the following comment:

"When a court handling a restraining order case designs the order so that the abusive parent can have contact with the children, this is NOT the same thing as giving the abusive parent visitation rights. Under the law, courts are not supposed to give visitation rights (that is, legally enforceable visitation rights) to a defendant in a restraining order case. Visitation rights can only be established in a family law case such as a divorce or custody case or a case involving determination of paternity for children whose parents are not married to each other. Visitation rights can only be established in a Probate & Family Court."
http://www.masslegalhelp.org/children-and-families/child-custody-and-visitation
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How does this apply to the Hormans? Why was the RO against Terri received from the family law court and not a criminal court? Would it have made any difference in visitation if the RO came from a criminal court?

 

[AZlawyer]

Sending a sincere thank you to all of the attorneys that interpret on WS.

Last month I found the following comment:

"When a court handling a restraining order case designs the order so that the abusive parent can have contact with the children, this is NOT the same thing as giving the abusive parent visitation rights. Under the law, courts are not supposed to give visitation rights (that is, legally enforceable visitation rights) to a defendant in a restraining order case. Visitation rights can only be established in a family law case such as a divorce or custody case or a case involving determination of paternity for children whose parents are not married to each other. Visitation rights can only be established in a Probate & Family Court."
http://www.masslegalhelp.org/children-and-families/child-custody-and-visitation
----------------
How does this apply to the Hormans? Why was the RO against Terri received from the family law court and not a criminal court? Would it have made any difference in visitation if the RO came from a criminal court?

In this case, the RO proceeding and the divorce proceeding have been consolidated, so the request by TH is really (1) to modify the RO order preventing her from having contact with the baby, in order to clear the way for (2) supervised visitation in connection with the divorce case.

ROs of the type we are discussing are not obtained from criminal courts. They are obtained from civil courts. Family courts are normally just a division of the civil courts.

 

[Billylee]

Just want to thank our attorneys for their invaluable input.

 

[BeanE]

If this request for visitation goes to a hearing, will Kaine have to present evidence to support his allegations in the RO? Or are they considered true because Terri didn't contest it in the eyes of the court?

If he does have to present supporting evidence, what if he can't?

Evidence aside, at the hearing, or before, can Kaine withdraw his complaint (the RO)?

If so, would the court still consider the baby to be in danger because the RO is or had been in effect? Or would the court just consider Kaine's complaint to have been unfounded?

Thank you so much!

 

[desquire]

If this request for visitation goes to a hearing, will Kaine have to present evidence to support his allegations in the RO? Or are they considered true because Terri didn't contest it in the eyes of the court?

If he does have to present supporting evidence, what if he can't?

Evidence aside, at the hearing, or before, can Kaine withdraw his complaint (the RO)?

If so, would the court still consider the baby to be in danger because the RO is or had been in effect? Or would the court just consider Kaine's complaint to have been unfounded?

Thank you so much!

The "visitation" topic has become so toxic that I'm almost afraid to weigh in here. Hopefully no one will take what I say here out of context.

Procedurally, TH is not contesting the RO with this motion. The time for that has passed, so it no longer matters whether KH has any evidence to support his original allegations or not. KH could, at any time, have the RO dismissed but, unless they are planning on reconciling and moving back in together, I don't think either KH or TH really care much about the RO anymore other than as it relates to the baby. Accordingly, TH is just seeking a modification of the terms of the RO to permit some parenting time. In an ideal world, the lawyers for TH and KH get together and agree on the howmuch/when/where/underwhatcircumstances and the judge modifies the order accordingly without any hearing at all. It's pretty clear that has not happened here, so the next thing you'll see is a motion from KH objecting to any modification of the order and then a hearing will be set.

At this hearing, the judge will not be revisiting the basis for the RO per se. The only issues before the judge will be (1) whether parenting time with TH would enhance the welfare of Baby K and (2) what limitations on such parenting time are necessary. Whether KH tries to bring up the Kyron allegations in the context of these issues, and to what extent the judge allows that, is anybody's guess.

Because she did not contest, the judge must presume that TH was a perpetrator of domestic abuse. The practical implications of this are that the judge will have to impose some limitation on the parenting time (controlled exchange of the child, third-party supervision, pre-requisite abuse prevention education, no overnight visits, or some combination thereof) and that she may be required to pay for the costs of any professional supervision ordered.

I think that covered your questions, let me know if I missed something.

 

[Dee10]

Do you think Kaine will ask or the Judge will order a psychological evaluation? If so, do you feel Houze will advise against it? TIA

 

[desquire]

Do you think Kaine will ask or the Judge will order a psychological evaluation? If so, do you feel Houze will advise against it? TIA

Anything's possible, but I highly doubt it. (Invitation to AZ or gitana to disagree.) That will come and will be more appropriate when they determine TH and KH's respective fitness for custody. Here we're just talking about what's bound to be a few hours here and there of professionally supervised parenting time. If the judge has any serious concerns about TH's psychological state, he'll probably just deny the motion and kick the issue down the road.

In the unlikely event any psych eval is necessary, I doubt Houze/Bunch would object but you can bet they'd want it all done under seal and the judge would grant that.

 

[NancyA]

I’m now curious to find out from lawyers here: does the court even have to address it [the RO] at all given that the deadline has expired? Reading some of what is said here that not contesting the RO in the time frame means the allegations are now presumed to be fact, can’t the judge just say “No, too late, don’t care about complicated circumstances, move along, next.”?

I posed the above question in the visitation thread and someone very kindly pointed out it would be better asked in here. Thanks in advance for any input.

 

[desquire]

I posed the above question in the visitation thread and someone very kindly pointed out it would be better asked in here. Thanks in advance for any input.

We've already discussed that here, so I posted a reply in the visitation thread.

 

[BeanE]

Kaine filed his response to Terri's visitation request. Can our attorneys offer some insight into the salient points?

Thank you!

Here's the document:
http://www.koinlocal6.com/media/lib...e7b948/SharpNews_koin.com_20101022_165135.pdf

 

[gwenabob]

Wow! That was a great response! I don't think there is really anything Bunch can say in response, even with Houze whispering in his ear.

 

[citigirl]

The motion filed by Rackner today seems to suggest that Terri's request to expedite the hearing on parenting time is at odds with her request for an abatement. Have you ever heard of case like that under other circumstances? How was it resolved?

 

[gliving]

Kaine filed his response to Terri's visitation request. Can our attorneys offer some insight into the salient points?

Thank you!

Here's the document:
http://www.koinlocal6.com/media/lib...e7b948/SharpNews_koin.com_20101022_165135.pdf

With much respect to BeanE question, might I also ask what the term 'unimaginable harm' might mean in legalese? Thank you.

 

[AZlawyer]

Kaine filed his response to Terri's visitation request. Can our attorneys offer some insight into the salient points?

Thank you!

Here's the document:
http://www.koinlocal6.com/media/lib...e7b948/SharpNews_koin.com_20101022_165135.pdf

The motion filed by Rackner today seems to suggest that Terri's request to expedite the hearing on parenting time is at odds with her request for an abatement. Have you ever heard of case like that under other circumstances? How was it resolved?

With much respect to BeanE question, might I also ask what the term 'unimaginable harm' might mean in legalese? Thank you.

I think Kaine's response makes a lot of excellent points about why no decision should be made about unsupervised visitation/parenting time until a full hearing can be held and evaluations of Terri done--i.e., not during the abatement period. Which is why I don't believe the judge will consider anything but supervised visitation at this time--and I don't think Terri's lawyer expects anything more than that anyway.

"Unimaginable harm" is not a legal term. I think it means that Kaine can't bear to think about what might have happened to his son.

 

[Billylee]

Hi AZ & Desquire

My question is this: Terri's request was just for an alteration of the RO and she requested only "supervised visits". The response from KH & his attorney, seems to speak volumes more than that, like they are trying to address custody issues. What do you two think of the response? And, do you think, a judge would require a psychological l evaluation of TH before he would even grant "supervised" visitation. Thanks.

 

[AZlawyer]

Hi AZ & Desquire

My question is this: Terri's request was just for an alteration of the RO and she requested only "supervised visits". The response from KH & his attorney, seems to speak volumes more than that, like they are trying to address custody issues. What do you two think of the response? And, do you think, a judge would require a psychological l evaluation of TH before he would even grant "supervised" visitation. Thanks.

IIRC, TH did not request only supervised visits--I just got the impression from reading it that her lawyer understood that, realistically, that was all she was going to get. So that's why KH's response goes beyond the supervised visitation issue.

I don't think the judge will insist upon a psych eval prior to supervised visits, unless there's something in the Oregon statutes that requires him to do so. And I think KH's attorney would have mentioned such a requirement in his response if one existed.

 

[Billylee]

IIRC, TH did not request only supervised visits--I just got the impression from reading it that her lawyer understood that, realistically, that was all she was going to get. So that's why KH's response goes beyond the supervised visitation issue.

I don't think the judge will insist upon a psych eval prior to supervised visits, unless there's something in the Oregon statutes that requires him to do so. And I think KH's attorney would have mentioned such a requirement in his response if one existed.

Thanks, I read it wrong. Yes, that explains the comeback.

 

[pinktoes]

In KH's latest affidavit, he stated that LE has told him that more than one circuit court judge has determined there is probable cause to implicate TH in both Ky's disappearance and in the MFH plot (lines 22-24 of the affidavit).

http://www.kptv.com/download/2010/1026/25509272.pdf

____________________________

Which judges could he be referring to? I've read nothing about that.