2010.06.28 - Kyron's Dad files for divorce and restraining order
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Good morning all. Long time lurker(from insession boards) and registered a few days ago. Your post is the reason that I fell off the fence. Terri has refused to do anything to see her daughter. I have not found one viable reason for why she has not done this. She had thirty days to have the order vacated and she didn't do that, but she could still petition for parenting time, if she wanted it.
The only reason I can think of is that she knows that she will have to answer some very specific questions about the MFH plot and her role in Kyron's disappearance...questions that she has no good answers for.
Jmo
IMO she did not contest because she's listening and following the advice of her attorney. So maybe we should ask the legal thread, why the attorney would have her not contest the RO.
Bringing this over from the legal thread:
Originally Posted by DairyGirl View Post
I have a question that someone answered but I am not sure they were a lawyer. If TH doesn't contest the RO she can't see her baby for a year. Can she still go to family court for the divorce and ask for custody or visitation? I heard that family court will abide by the RO and not change the parenting time.
Eta, I just read this:
http://www.katu.com/news/local/98434609.html
Does that change the way things are done with the parenting time? So even if TH doesn't contest the terms of the restraining order she can still ask for parenting time in the divorce? Does this make sense?
Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.
Answer from AZLawyer:
Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.
Also, wanted to add this from an article I found interesting.
Cogan also had advice for Terri Moulton Horman, Kyron’s step-mother who has been under scrutiny in the press.
“I would advise her to not speak to the news media, to not publish any comments online, to not give any interviews to reporters, to be quiet, to not give any interviews and to allow her defense team to do their work,” he said.
And if she did make a public statement?
“I would refuse to represent a client who is making rash statements in the press and giving interviews,” he said. “If I had a client that was doing that, that would be the end of our relationship.”
I'm thinking Mr. Houze, is doing the same thing this attorney would do.
http://www.koinlocal6.com/news/loca...Kyron-Horman/Dz4uMChK60KCWjy3W5FG4Q.cspx?p=18
Bringing this over from the legal thread:
Originally Posted by DairyGirl View Post
I have a question that someone answered but I am not sure they were a lawyer. If TH doesn't contest the RO she can't see her baby for a year. Can she still go to family court for the divorce and ask for custody or visitation? I heard that family court will abide by the RO and not change the parenting time.
Eta, I just read this:
http://www.katu.com/news/local/98434609.html
Does that change the way things are done with the parenting time? So even if TH doesn't contest the terms of the restraining order she can still ask for parenting time in the divorce? Does this make sense?
Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.
Answer from AZLawyer:
Now that the matters are consolidated, everything should be simpler. The RO is only for a limited time anyway, and certainly does not preclude TH from arguing long-term custody and visitation. If the court determines that visitation/custody with TH is appropriate, the RO will simply be vacated in part or amended to be consistent with the divorce court orders.
Also, wanted to add this from an article I found interesting.
Cogan also had advice for Terri Moulton Horman, Kyron’s step-mother who has been under scrutiny in the press.
“I would advise her to not speak to the news media, to not publish any comments online, to not give any interviews to reporters, to be quiet, to not give any interviews and to allow her defense team to do their work,” he said.
And if she did make a public statement?
“I would refuse to represent a client who is making rash statements in the press and giving interviews,” he said. “If I had a client that was doing that, that would be the end of our relationship.”
I'm thinking Mr. Houze, is doing the same thing this attorney would do.
http://www.koinlocal6.com/news/loca...Kyron-Horman/Dz4uMChK60KCWjy3W5FG4Q.cspx?p=18
thanks For the warm welcome Kimster and Donjetta!
Billylee, thanks for the links to the answers from the lawyer. I've spent a lot of time reading up on that Oregon FAPA RO because I was struck by the fact that it was a permanent order upon judge's signature and could only be vacated with some action from Terri. The matters have been consolidated and as such, Terri would still have to answer to the RO allegations in order to argue herself fit enough to have custody with K, especially if Kaine decides to renew the order(which he can do with no new informaion about Terri).
I think it's a good bet that Houze is the reason Terri is not fighting for her daughter. She is choosing to listen to her lawyer. I couldn't fathom, as an innocent woman, allowing my lawyer to talk me into being absent from
my toddler's life. I would have to fire that lawyer and find one that believed in me enough to help me fight for my child.
If we are to believe Michael Cook, Terri has already disregarded her lawyer's requests and asked Mr. Cook to lie about that. If that is true then Terri is a least willing to disregard her lawyer when it suits her. Which still leaves me questioning her not fighting the RO.
Jmo
As well,
Billylee, thanks for the links to the answers from the lawyer. I've spent a lot of time reading up on that Oregon FAPA RO because I was struck by the fact that it was a permanent order upon judge's signature and could only be vacated with some action from Terri. The matters have been consolidated and as such, Terri would still have to answer to the RO allegations in order to argue herself fit enough to have custody with K, especially if Kaine decides to renew the order(which he can do with no new informaion about Terri).
I think it's a good bet that Houze is the reason Terri is not fighting for her daughter. She is choosing to listen to her lawyer. I couldn't fathom, as an innocent woman, allowing my lawyer to talk me into being absent from
my toddler's life. I would have to fire that lawyer and find one that believed in me enough to help me fight for my child.
If we are to believe Michael Cook, Terri has already disregarded her lawyer's requests and asked Mr. Cook to lie about that. If that is true then Terri is a least willing to disregard her lawyer when it suits her. Which still leaves me questioning her not fighting the RO.
Jmo
As well,
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I agree, it would be extremely, horribly difficult to be separated from my baby. However, if she is innocent in Kyron's disappearance, but feels persecuted for the MFH even though there may not have been intent involved, she might just listen to her attorney, so that she can some day be with her baby again. IDK
Here's the newest answer from AZLawyer today:
There are a few reasons not to contest the RO. Let's start with (1) you don't want to testify re: the MFH because you might incriminate yourself, (2) you don't want to testify re: Kyron because you might incriminate yourself, (3) you don't particularly care if you get to see your toddler or not. For the record, I think #3 is not true.
I'm not sure what you mean by "some other sort of legal action" but I don't see why the judge in the divorce couldn't grant custody or visitation to TH even if the RO is never challenged. Gitana, I believe, actually practices in this area, so if she stops by with her opinion on this you should all take her word over mine.
Gitana, do you agree with AZ?
gitana1
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It is confusing but let me see if I can make things a bit more clear, because some of my posts may seem contradictory on this subject. But this is my field of law so I'm going to try to make it as straightforward as possible.
1. DV restraining orders are separate cases from dissolution of marriage or "paternity" cases. A person can file a DV RO application within an already existing paternity or disso case but often they come first, which, when you think about it, makes sense.
2. The process to obtain a DV RO is as follows: First, an emergency hearing is held with little or no notice. The application is viewed by the court. If the opposing party was noticed, they may come to the hearing, read the application and right then and there, contest the application, either by handwriting a response, filing an earlier prepared response (if they have an idea as to what the allegations will be) or asking to speak with the judge. Sometimes, the court makes its decision based on what the parties write, and does not hold an actual hearing. If there is no one there to contest temporary orders, the court can and often issues the requested orders but not always. I have seen many cases where the court feels there is not enough in the application to issue orders and wants to hear from the other side first, especially when child custody is at issue. Second, after the initial emergency (ex parte) hearing, a regularly set hearing may be held. At that hearing, evidence will be presented, or allegations and the opposing side will have ample opportunity to make objections, challenge the allegations/evidence, present testimony from the parties or other witnesses and/or cross examine the requesting party. After the hearing, the court will decide whether or not to issue what is known as a "permanent" RO. If there is no opposition, it is easier to get this RO, but even then, sometimes the court feels the allegations and/or evidence is not enough. Third, the RO that is issued lasts for a specific time period. They are known as permanent ROs but actually do not last forever. In CA, they can last up to five years. Either party can petition the court to modify the orders in some way before the RO expires. That is not easy if both parties are not in agreement or if one party does not have a compelling reason to do so. In OR, there is a 30 day period to contest the initial, emergency order, but not the final order. There is some confusion on that on these threads, but I have reviewed the law. here's how it goes: An emergency hearing is held, the requested order is granted or not, the court then either sets a hearing, or if temporary orders have been issued, can choose not to set a hearing. If the court chooses not to set a hearing, the initial orders (those issued at the emergency hearing) become "permanent" after 30 days and last until the RO expires (one year). The accused has 30 days from the date of the initial petition (emergency hearing) to request a hearing if the judge has not set one. After the 30 day period, orders can still be appealed and/or modified, depending on the circumstances. Fourth, prior to the date the RO is to expire, the protected party can reapply for a new RO. Otherwise, if there were child custody orders issued in the RO, they need to file a separate action, like disso or paternity, if they want those orders to be extended.
3. Here's how I understand RO child custody orders to work in OR when there is a parallel disso or paternity action: In a case where the RO is brought within an existing disso or paternity case, and child custody orders are issued within the RO, those orders are not automatically modifiable. There is no automatic second bite of the apple. Those orders are the same as if they had been issued in a judgment in connection with a disso or paternity case in the absence of a DV application.
4. Likewise, when the RO is a separate case from the disso, for example, like when a party files for a RO and then files for divorce, the custody orders issued in the RO are not automatically modifiable just because child custody is an issue to be decided in the disso. This is Kaine's case. He filed the DV under a separate case number from the disso.
5. So, in cases when a party files an RO at the same time or before they file for disso, how are child custody orders in the RO treated when the court addresses child custody in connection with the disso? Well, one would assume they are treated the same way interim child custody orders issued in the absence of a DV action, in a disso or paternity case, are treated prior to final judgment. I.e., those orders can be changed in the final judgment without showing some kind of change. That's not true. The DV action is considered complete in and of itself. So , in my opinion, DV custody orders would not be treated the same as interim custody orders in the regular disso case. It may be somewhat easier to modify the RO custody orders in the context of a disso case, because there is an open case and hearings may already be set, etc. - no need to file something new under the DV case number. However, normally, the child custody orders in the DV action would simply be adopted by the court in the disso action. Again, there is no automatic second bite of the apple. Often, the DV and disso cases would be consolidated. Someone mentioned that that had happened here. I have not seen that. In any event, the court handling the disso case (sometimes the same court, same judge) would likely make mention of the existing DV and adopt those child custody orders or, if either party wanted to change that, the court would entertain a change of those orders based on some sort of change in circumstances:
For a court to modify a current custody order, the requesting party must show that a substantial and unanticipated change of circumstances has occurred since the previous order was filed. These changes of circumstances usually involve a custodial parents' inability to care for the children, and an improvement in the parental abilities of the non-custodial parent. Sometimes other factors such as remarriage or relocation are considered. Mediation and custody evaluations are often used to help resolve disputes over modifying custody orders. (emphasis added by me)
http://www.divorcesource.com/OR/ARTICLES/kramer9.html
Here's another snip from another link:
For example, in Oregon, a modification action to change child custody must be supported by evidence that the current custodial parent is unfit to provide primary care of the children and a change of custody to the other parent is in the best interests of the child.
http://www.divorcenorthwest.com/modification.asp
Kimster mentioned something about if a change of circumstances cannot be shown after two years, it's almost impossible to change custody. I think that applies to child support though, not custody. From what I can see, a change of circumstances can be shown at any time but in OR, to switch custody, that basically means one must show that the parent with custody is no longer fit to provide primary care. In any event, in the Horman case, TH would likely have to address the RO allegations in the disso case, in order to even get visitation, at this point, let alone a change of custody.
5. What happens to the RO child custody orders after they expire where there is an existing disso or paternity case? Well, if the cases were consolidated, the child custody orders would continue after the RO expires. If not, as stated above, the protected party would have to seek matching child custody orders in another case. Does that mean that the whole issue of custody can be revisited at the time the RO is set to expire? Not really. The same basis for the child custody orders and for modifying them that exists in the context of a DV RO would likely apply. That means, it needs to be shown that there is some kind of change, like the abuser underwent a batter's treatment program, or now there are problems in the custodial parent's home.
6. Basically, OR law makes it harder to change a custody order than CA, for example. Joint custody is not ordered unless the parties' agree. That means that in the absence of such an agreement, one party is awarded sole custody. Also, those custody orders (except in the interim, temporary child custody cases in the context of a disso or paternity action), are very unlikely to change without showing that something has gone wrong in the custodial parent's home. What can be modified at any time is visitation. Thus, in this case, TH can move, at any time, for a change in her contact with the baby. But IMO, her ability to regain actual custody of her daughter has been severely prejudiced by not contesting the RO in any way, not even requesting visitation with her child, and it is unlikely that she will regain custody.
Caveat: My understanding of how DV RO child custody orders issued in the context of an on-going dissolution of marriage action (i.e., that those orders are treated differently from interim orders obtained in such cases in the absence of a DV action), is based on my interpretation of OR law, and how it has worked for me in my California cases. Both are 9th circuit states and have very similar laws. When a DV RO has been issued against one person, that creates, in both my state and OR, a presumption against joint or sole custody to the accused.
In sum, I have seen repeatedly that TH is doing something strategic so she can get custody later on and not prejudice her future rights by contesting custody now. My professional opinion is that she has absolutely done the opposite. I see no legitimate, legal way of maneuvering out of the legal position she is now in, without custodial rights to her child. IMO, that shows that she had a very, very serious reason to compromise her ability to be in her child's life in any meaningful way, for the foreseeable future. We all have our opinions as to what that serious reason could be.
gitana1
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I agree with the first part but not with the bolded part. She could possibly get supervised visitation without challenging the RO, she will definitely not get custody without addressing the allegations and at this point, her failure to contest the RO is likely fatal to her ability to have any custodial rights in the foreseeable future. I posted a long explanation as to why I think this way, above.
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IMO, I really think TH wanted everything to just go away.
She didn't want to fight because so much about her would come public.
IMO, she would lose anyway and knew it.
Her lawyer probably said he would fight it later just like the divorse.
She didn't want to fight because so much about her would come public.
IMO, she would lose anyway and knew it.
Her lawyer probably said he would fight it later just like the divorse.
gitana1
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Except it kind of really just doesn't work that way. It's kind of like saying, "Well, I won't contest the criminal charges against me now but I'll fight later, after I'm convicted." her avenues for fighting the RO at this point are to appeal. That's very hard to win. Essentially, she must show that there was an error in what the court did when it issued the RO. Also, the child custody orders are linked hard and fast to the RO. By not contesting it, she was found to have committed DV. Simply by not contesting it. That impacts her ability to get any kind of custody. I have explained above why I think having an existing dissolution of marriage action that she may litigate in the future, will be unlikely to be helpful in modifying custody. She could get visitation, though, in the future.
Thank you, Gitana1...
In sum, I have seen repeatedly that TH is doing something strategic so she can get custody later on and not prejudice her future rights by contesting custody now. My professional opinion is that she has absolutely done the opposite. I see no legitimate, legal way of maneuvering out of the legal position she is now in, without custodial rights to her child. IMO, that shows that she had a very, very serious reason to compromise her ability to be in her child's life in any meaningful way, for the foreseeable future. We all have our opinions as to what that serious reason could be.
Is there any way TH could ask the courts to appoint a guardian ad litem and request a mediated visitation with baby K until the RO and disso was resolved? In other words, supervised visits with baby k while waiting for court hearings to play out? She hasn't been charged with a darn thing. That should weigh in her favor for at least visitation, right?
ETA: Nevermind, Gitana, you answered it while I was reading your legalese and typing my question. Thank you so much! Much appreciated.
In sum, I have seen repeatedly that TH is doing something strategic so she can get custody later on and not prejudice her future rights by contesting custody now. My professional opinion is that she has absolutely done the opposite. I see no legitimate, legal way of maneuvering out of the legal position she is now in, without custodial rights to her child. IMO, that shows that she had a very, very serious reason to compromise her ability to be in her child's life in any meaningful way, for the foreseeable future. We all have our opinions as to what that serious reason could be.
Is there any way TH could ask the courts to appoint a guardian ad litem and request a mediated visitation with baby K until the RO and disso was resolved? In other words, supervised visits with baby k while waiting for court hearings to play out? She hasn't been charged with a darn thing. That should weigh in her favor for at least visitation, right?
ETA: Nevermind, Gitana, you answered it while I was reading your legalese and typing my question. Thank you so much! Much appreciated.
gitana1
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Your welcome. Someone told me there are no GALs in OR. But TH could, at any time, request visitation of some sort. I definitely believe she could get supervised visits, possibly without addressing the RO allegations. But I guess that depends on how dangerous Kaine makes her out to be and whether the court thinks, even if the allegations are true, that TH could pose a threat to Baby K in a supervised setting. If I were her family law attorney and believed her to be innocent of anything criminal having to do with Kyron, I would definitely advise seeking some sort of contact, at once.
I teeter back and forth between TH being a massive train wreck to being a criminal mastermind. To the point that this case is on my mind even as I sleep. I guess the thing that bothers me the most is that through her own doing TH no longer has physical custody of either of her two bio kids, her stepson is missing and she is the de facto suspect. That coupled with she doesn't even use her master's degree to teach children for a living makes me think that she doesn't really even like kids.
One of the most interesting things about narcissistic personality disorder is those with it are usually responsible for their own undoing. TH seems to have a classic case.
Thanks again for your legal explanations! You rock!
miabellamoure
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gitana1
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I just hope it makes sense! It makes sense to me but it's what I do all day. I just hope I haven't added to any confusion. It's happened before!!!
Donjeta
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SBM.
Thank you gitana1 for taking the time to explain.
A little OT but does the above mean that Desiree would have had to show that Kaine was an unfit parent if she had wanted to change the custody orders after she got better after her illness and Kaine didn't agree?
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