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

[gitana1]

Kaine got the RO and the divorce filed prior to Terri being served with either. She had no chance to contest before the RO was assigned.

Reading through the RO, the only evidence seems to be Kaine's hand-written statement that LE gave him reason to believe the statements he made in the document (that Terri kidnapped his son and tried to hire someone to murder him) were true.

It is after that which this thread addresses why she didn't contest it once served.

Isn't that standard procedure? I am asking, as I would assume that is the way it works. You file the papers first, then they are served on the other party. It is then up to the other party to contest, no? If so, Terri chose not to contest.

Right. But Donjeta's question had to do with why Terri didn't contest the RO as it was in front of the judge. At least, that is what I was responding to in my reply.

As I recall, Kaine had left the house on the 26th and Terri was served on the 28th.

I'm not sure what is meant by "assigned". I posted a long post with the process outlined in the post. I'll do it again a bit shorter: 1. An emergency hearing is held. That's when the RO application is filed. The accused may have received a short amount of notice or none at all. 2. At the emergency hearing, the judge decides based on the application, and, if the accused shows up, based on anything the accused submits after quickly reading the application, whether or not to grant the RO on a temporary basis. 3. If the judge grants the RO, one of two things happens: a) the judge automatically sets a hearing date for the parties to come to and litigate the RO request, which will happen after the accused is served with the RO application, or; b) No hearing is set and the accused is given 30 days after service of the RO to request a hearing date if he or she wishes to contest the RO. If they choose not to request a hearing, the "temporary" orders issued become "permanent", (i.e. they will last for one year).

 

[debs]

Thank you once again, Gitana.

 

[gitana1]

IMO, there is absolutely no similarity and/or comparison between not fighting a RO at this time and not fighting criminal charges until after conviction. Not only will not fighting a restraining order at this time result in prison time but it won't even result in never having custody and/or visitation of her child.

IMO, fighting the RO at this time is tantamount to not fighting any potential future criminal case by waiving all Constitutional Rights.

IMO, obviously, at this time any potential future criminal case takes precedent over all other issues. That in effect ties TH's hands from fighting both the RO and/or custody at this time. As changes to child custody can be brought at any time and the RO does not specifically address charges of abuse specific to the baby, TH's attorney should easily be able to argue for changes to custody and/or visitation in the future. If her attorney cannot, she needs to find a new attorney.

As far as why TH did not fight the RO and/or for custody, her attorney explains his reasoning in the Motion for Abatement.

BBM. I don't understand what this means. Can you clarify?
I have explained how TH could have fought the RO without compromising her rights in a potential criminal case.
Changes to custody absolutely cannot be made at any time. OR law is fairly clear on this. I've posted a synopsis. TH will be unlikely to ever get any custody rights in the future, based on my understanding of OR law, unless she and Kaine mutually agree to change the court orders. However, requests for visitation and/or contact with her baby can be made and granted at any time.

What my comparison meant to show is that one cannot fail to contest an RO request and then later revisit the issue. If you fail to contest it and an RO is issued against you, that is tantamount to failing to contest criminal charges against you in that if you fail to plead at the arraignment, then fail to defend yourself in any way at trial, fail to present evidence, testimony, to cross examine witnesses or object to evidence, etc., such failure will result in a criminal conviction. One cannot later go back and say, "Oh, I'm ready to fight now." Once a conviction has been entered, that's it unless there is an appeal. Same thing with an RO. Once an RO has been issued after the thirty day time period has passed with no request from the accused for a hearing, there is a finding of DV against the accused and there are no more hearings or opportunities to contest that except appeal.
Of course a finding of DV and a criminal conviction have different consequences and my post did not imply that they did. Some posters seemed to have felt that there would be some later opportunity to undo the RO and this was a way of explaining that that is not true. I hope that helps.

 

[gitana1]

Thank you once again, Gitana.

Your welcome. I love to post here because it is a real break for me from my job. Do a little work, go and read or post, more work, read and post again. I think it tells a lot about my job that reading about murder and missing kids is a "break"! My job can be so, so stressful!
BTW, I have loved your avatar since I first saw it. It's hilarious. I like to stare at it and try to read the words in sync with the music from the song. Very funny!

 

[debs]

Kaine took off two days before Terri received the RO, and Kaine ignored her plea to tell her what was going on, where was her daughter. The RO has unsubstantiated claims of abuse (MFH) and kidnapping (thanks Gitana for validating that they are indeed unsubstantiated). The judge signed this RO, further dictating that Terri could have NO contact with baby K at all (as well as Kaine).

Like I've said, I don't know the legal pickle Terri found herself, but I don't believe she would be out of it if she'd have contested this RO. The underhanded way in which it came about is very disturbing to me. No, I don't believe anyone who receives an RO knows they're going to get one. But in this instance, I think Kaine had been planning a move like this for quite some time.

I am not addressing any reasons he felt he needed to act. Just that the way it all went down is hinky to me. MOO.

 

[Billylee]

Did the judge ever even see any evidence from LE to convince him, or not? I thought that Kaine didn't have to present any actual evidence because Terri didn't contest.

Gosh I just assumed the judge would want some sort of evidence before granting an RO based on an allegation of MFH and kidnapping. I mean if it was physical spousal abuse for instance, wouldn't you have to submit some kind of evidence before the judge would grant an RO (like pictures of bruises or hospital records?)

Am I understanding correctly that anyone will be granted an RO based only on what they say? They need nothing to back up their accusations?

The burden of proof lies only on the responding party?


Ain't the law interesting?

 

[ami]

Kaine took off two days before Terri received the RO, and Kaine ignored her plea to tell her what was going on, where was her daughter. The RO has unsubstantiated claims of abuse (MFH) and kidnapping (thanks Gitana for validating that they are indeed unsubstantiated). The judge signed this RO, further dictating that Terri could have NO contact with baby K at all (as well as Kaine).

Like I've said, I don't know the legal pickle Terri found herself, but I don't believe she would be out of it if she'd have contested this RO. The underhanded way in which it came about is very disturbing to me. No, I don't believe anyone who receives an RO knows they're going to get one. But in this instance, I think Kaine had been planning a move like this for quite some time.

I am not addressing any reasons he felt he needed to act. Just that the way it all went down is hinky to me. MOO.

This is the way domestic violence ROs go. It would be dangerous to tell someone in advance you are going to the police and getting an RO against them. It's always done this way. Kaine did nothing different than thousands of men and women who feel endangered (for themselves or their children) by their spouse.

Gitana explained pretty clearly how an innocent Terri could have contested the grounds for the RO without ever having to testify. An innocent Terri would not have known what kind of evidence Kaine had, because an innocent Terri would not have done anything warranting a document severing her from her child - therefore an innocent Terri would have contested the hearsay evidence and asked for proof - knowing full well there could be no proof because she had done nothing wrong. But Terri did not do this.

It seems odd to say Kaine was planning an RO for a long time - what has he said or done to suggest it?

 

[Trt]

Did the judge ever even see any evidence from LE to convince him, or not? I thought that Kaine didn't have to present any actual evidence because Terri didn't contest.

It's different for FAPA ROs in Oregon. Kaine was grantedan emergency exparte leading on June 28th where he had to provide credible proof of the allegations made in his petition. Once that was entered into evidence, the judge then made a decision whether the evidence was credible enough to warrant the hearing.

Kaine does not have to present anymore evidence against Terri, even if she files to have the RO contested and even if he chooses to renew the order next year. The initial proof was enough. Jmo

 

[purple turtle]

Originally Posted by gitana1 View Post
It was granted, apparently, on unsubstantiated allegations. The way for TH to have dealt with that was to request a hearing and contest the allegations. TH could have done that even without actually testifying - that's her right - by merely objecting to hearsay allegations and forcing Kaine to provide actual proof, not just hearsay. My law partner did that in a case where criminal charges were pending for the same alleged DV. He didn't put the client on the stand at all, just ripped apart the so-called evidence.
So answer me this, how would such a strategy act to open TH up to self-incrimination? It wouldn't because she would not be testifying. But she'd be forcing Kaine to put up or shut up and she would show that she's not going to just back down and take having her kid ripped from her. The fact that she didn't, even though challenging the allegations without testifying was an option, speaks volumes to me. She did not want Kaine to outline his evidence for some reason. Why?
In addition, although often unsubstantiated allegations result in an RO when there is no challenge to the request, that is not always the case. The court has to feel the allegations are serious enough and seem to have some merit. I have seen RO's denied even without opposition, when the allegations seemed very far-fetched or illogical. I will admit, however, that this is not often.

BBM
People with nothing to hide, hide nothing.

Gitana stated above that TH did not have to testify to fight the RO ... she could have had her lawyer make Kaine prove his allegations and would not have had to testify ... yet they chose not to.

IMHO an innocent person would have said "Murder for hire? PROVE IT!"

They may not have enough to arrest Terri but they must have enough that she chose between her daughter and the risk of having daylight shown on what they do have against her in court. :twocents:

 

[Calliope]

If that's the case, then the DA is no doubt breathing a sigh of relief.

 

[Donjeta]

Gosh I just assumed the judge would want some sort of evidence before granting an RO based on an allegation of MFH and kidnapping. I mean if it was physical spousal abuse for instance, wouldn't you have to submit some kind of evidence before the judge would grant an RO (like pictures of bruises or hospital records?)

Am I understanding correctly that anyone will be granted an RO based only on what they say? They need nothing to back up their accusations?

The burden of proof lies only on the responding party?


Ain't the law interesting?

JMO but I don't think so. The temporary RO might be granted on less evidence because it is often a matter of some urgency and there is not time to put all the evidence together. But in the regular hearing the accuser is required to convince the judge with something unless the respondent decides to say, Oh ok, all right with me, you don't have to prove anything because I won't argue anything, I accept this (=I don't contest). It saves the judge's time and both parties' attorney fees because if both parties are agreeable to whatever was petitioned there is no need to discuss the evidence.

It's just the same in criminal cases. If the prosecutor presses false charges against you based on frivolous evidence and you choose not to contest the prosecutor's frivolous evidence doesn't get to be examined in court in front of a jury because you made the decision not to press the prosecution to produce their burden of proof.

 

[Trt]

Kaine took off two days before Terri received the RO, and Kaine ignored her plea to tell her what was going on, where was her daughter. The RO has unsubstantiated claims of abuse (MFH) and kidnapping (thanks Gitana for validating that they are indeed unsubstantiated). The judge signed this RO, further dictating that Terri could have NO contact with baby K at all (as well as Kaine).

Like I've said, I don't know the legal pickle Terri found herself, but I don't believe she would be out of it if she'd have contested this RO. The underhanded way in which it came about is very disturbing to me. No, I don't believe anyone who receives an RO knows they're going to get one. But in this instance, I think Kaine had been planning a move like this for quite some time.

I am not addressing any reasons he felt he needed to act. Just that the way it all went down is hinky to me. MOO.

bbm...

You can't really address the way it went down without addressing his reasons for feeling he needed an RO in the first place. That is key and critical to the way it all went down, IMO.

JMO but I don't think so. The temporary RO might be granted on less evidence because it is often a matter of some urgency and there is not time to put all the evidence together. But in the regular hearing the accuser is required to convince the judge with something unless the respondent decides to say, Oh ok, all right with me, you don't have to prove anything because I won't argue anything, I accept this (=I don't contest). It saves the judge's time and both parties' attorney fees because if both parties are agreeable to whatever was petitioned there is no need to discuss the evidence.

It's just the same in criminal cases. If the prosecutor presses false charges against you based on frivolous evidence and you choose not to contest the prosecutor's frivolous evidence doesn't get to be examined in court in front of a jury because you made the decision not to press the prosecution to produce their burden of proof.

For most orders, that is true, but for an FAPA RO in Oregon, the petitioner has to provide credible proof of the abuse that prompted the request for the order.

There is no automatic hearing required with this type of order, as with most other ex parte orders. Once the judge hears the petitioner, he enacts the order which is effective for a year, unless Terri contested it within 30 days of June 28th. Then she would have been required to answer to the allegations(that the judge has already given credence to by virtue of the order) in order to have the order vacated.

Had Terri requested a hearing(or if she chooses to request one now), Kaine does not need to provide any additional evidence of his allegations. But there was initial proof as the order demands.

Jmo

 

[Donjeta]

So Kaine and Rackner must already have shown the judge something beyond the petition that the judge considered proof or at least was worried enough about to issue the RO in the initial hearing? What could it be? LE statements? Landscaper statements? Emails and text messages? Something else?

Do Terri and her lawyers have access to the evidence that Kaine showed the judge in the hearing that Terri wasn't present in? I think we might have to consider that another good reason Terri didn't contest the RO might be that the evidence was pretty good.

But yet not enough to arrest? Are they waiting for something?

 

[SurfieTX]

But yet not enough to arrest? Are they waiting for something?

I'm guessing that they might have enough to arrest, but instead are giving TH enough of a leash to lead them to Kyron's whereabouts. :waitasec:

 

[Trt]

So Kaine and Rackner must already have shown the judge something beyond the petition that the judge considered proof or at least was worried enough about to issue the RO in the initial hearing? What could it be? LE statements? Landscaper statements? Emails and text messages? Something else?

Do Terri and her lawyers have access to the evidence that Kaine showed the judge in the hearing that Terri wasn't present in? I think we might have to consider that another good reason Terri didn't contest the RO might be that the evidence was pretty good.

But yet not enough to arrest? Are they waiting for something?

This is my understanding of the statutes. Kaine stated in his petition that LE believes and has caused him to believe that Terri tried to have him killed. In the ex parte hearing, he would have to provide proof(preponderance as civil cases demand) to that allegation. This could be any of the things you mentioned above. I'm thinking the landscaper passed some sort of polygraph(not admissable in criminal court, not sure about civil) and either his statements or an LEO's statements were presented at the hearing. I do think that is why they have not arrested Terri. The landscaper's words and possible passed polygrapgh would not be enough to try Terri in a criminal court.

Terri and her lawyer do not have access to the information provided at the ex parte hearing. Many think that this is why he has chosen not to fight the civil proceedings...he doesn't have a clue what LE has. IMO, his client has not been
completely forthcoming with him, so his hands are probably tied at this point.

 

[SurfieTX]

Granted, this is hearsay, but....

"One woman said she underwent a five-hour polygraph examination about Kyron’s disappearance Thursday. She said investigators told her they already have probable cause to arrest Terri Horman on the alleged murder-for-hire plot and for Kyron’s disappearance. But they didn’t say why an arrest hasn’t happened yet.

She described in detail how investigators first questioned her for three hours and asked her about everything she knows about the case, Terri Horman and the day Kyron vanished.

Then investigators ran her through what would be covered in the test, and in the fifth hour, she was physically hooked up to the machine.

She said she passed her polygraph."


http://www.katu.com/news/local/99146044.html

 

[Billylee]

Granted, this is hearsay, but....

"One woman said she underwent a five-hour polygraph examination about Kyron’s disappearance Thursday. She said investigators told her they already have probable cause to arrest Terri Horman on the alleged murder-for-hire plot and for Kyron’s disappearance. But they didn’t say why an arrest hasn’t happened yet.

She described in detail how investigators first questioned her for three hours and asked her about everything she knows about the case, Terri Horman and the day Kyron vanished.

Then investigators ran her through what would be covered in the test, and in the fifth hour, she was physically hooked up to the machine.

She said she passed her polygraph."


http://www.katu.com/news/local/99146044.html

This is exactly the kind of thing that scares me. It's September 22, and they haven't arrested TH. This statement was from two months ago! IMO LE can and will tell anybody anything if they think they need a little persuasion to reveal the truth. What would you expect them to say? "Oh, you're right, we're just witch hunting, so c'mon take this lie detector test for us, will ya?"

I'm glad this person, whomever she is passed the LDT, they obviously must not have believed whatever she'd been telling them, or they wouldn't have asked her take one. So I'm guessing it either corroborated TH's story or at the very least, like Dede, did not tell them something they were hoping to hear about TH. I wonder how many other of TH's friends were asked to take LDTs? Does LE think that EVERYONE is lying? Good grief.

If they had enough to arrest TH, I'm sure it would have been done by now. JMO

 

[gitana1]

This is exactly the kind of thing that scares me. It's September 22, and they haven't arrested TH. This statement was from two months ago! IMO LE can and will tell anybody anything if they think they need a little persuasion to reveal the truth. What would you expect them to say? "Oh, you're right, we're just witch hunting, so c'mon take this lie detector test for us, will ya?"

I'm glad this person, whomever she is passed the LDT, they obviously must not have believed whatever she'd been telling them, or they wouldn't have asked her take one. So I'm guessing it either corroborated TH's story or at the very least, like Dede, did not tell them something they were hoping to hear about TH. I wonder how many other of TH's friends were asked to take LDTs? Does LE think that EVERYONE is lying? Good grief.

If they had enough to arrest TH, I'm sure it would have been done by now. JMO

Again, they may have enough to arrest but not to secure a conviction. How long did it take to arrest Diane Downs? (9 months) And scott peterson? (3.5 months) How long to arrest casey anthony for the murder of her child (what she was initially arrested for was not for murder)? (3 months) How about Drew Peterson? (5 years). It sometimes takes a while to put together a solid case and run through all the different scenarios, eliminate other people, analyze evidence, etc.
My guess is that this is a mostly circumstantial case. LE stated, I think, that there is no smoking gun - no blood in TH's vehicle, for example. No gun shot residue looked for or found on her hands. That kind of thing. So they have to work it until the DA says: "We have enough. Go get her."
A delay in an arrest does not indicate TH is innocent.

 

[Billylee]

I didn't mean to imply TH was innocent. Never said that. I was commenting on Surfie's link above where one of TH's friends was told back on July 23rd, that LE had told her way back then, they had probable cause to arrest TH. What I said is I don't think they do, or she'd be arrested. And yes, I believe they are definitely still working on attempting to gather more, because they don't have enough.

 

[SurfieTX]

It was granted, apparently, on unsubstantiated allegations. The way for TH to have dealt with that was to request a hearing and contest the allegations. TH could have done that even without actually testifying - that's her right - by merely objecting to hearsay allegations and forcing Kaine to provide actual proof, not just hearsay. My law partner did that in a case where criminal charges were pending for the same alleged DV. He didn't put the client on the stand at all, just ripped apart the so-called evidence.

So answer me this, how would such a strategy act to open TH up to self-incrimination? It wouldn't because she would not be testifying. But she'd be forcing Kaine to put up or shut up and she would show that she's not going to just back down and take having her kid ripped from her. The fact that she didn't, even though challenging the allegations without testifying was an option, speaks volumes to me. She did not want Kaine to outline his evidence for some reason. Why?

I found this interesting and it kind of ties in to what you are explaining (and thank you for doing so!).

"A former prosecutor also says it’s not unusual to have a criminal case overlapping with a civil case. It happens quite frequently in domestic violence situations in which a divorce comes out of a domestic incident.

The question remains as to why Terri Horman came to the hearing. She certainly had the right to do so but said nothing in court, nothing to the media, and her presence, legally, wasn’t necessary."

http://www.katu.com/news/local/101511664.html