RO and Visitation - TIMELY MATTER

[xyz1]

Case is in NC - BF lives in one County were the RO is issued and BM lives in the next county

My husband has a ex parte RO against his ex-wife - she was served today 5/12/06 at 10:30am

Their custody orders (from four years ago) state she has visitation this coming weekend (Mother's Day).

The child/my husband/myself are covered under the RO as no contact with the BM at all

The court date for this RO is 5/23/06

The BM's mother call my home at 11:30am and left a message on my answering machine stating she had the paper work and would be here to pick up the child at 10:30am tomorrow morning.

My questions:

1- Is there any paper work she could have filed to still take her visitation even with the RO in place?

2 - Would the court in a different county change the RO to allow BM visitation without the case being heard in court with both parties there?

3 - Any other advice you might have...

[socrateaser]

>My questions:
>
>1- Is there any paper work she could have filed to still take
>her visitation even with the RO in place?

Not unless you are served with the paperwork and notice of the hearing. So if she shows up with a court order granting her the right to take the child then you'll have to turn her over. If not, then she's violated the TRO and you can call the sheriff and have her arrested on the spot.

>2 - Would the court in a different county change the RO to
>allow BM visitation without the case being heard in court with
>both parties there?

No. She must file where you filed.

>3 - Any other advice you might have...

Keep the recording, because it is evidence of contempt. The other parent doesn't understand the seriousness of this sort of TRO, but if she shows up to pick up the child, you can show her how serious it is, by calling the police.

I'm not necessarily advising that you do this, but you can certainly tell her that she must leave immediately and that she needs to call an attorney and have the law explained, and that if she doesn't that you'll call the authorities and she will be arrested.

If she doesn't leave, then, regrettably, you should call the police and the message will be delivered the hard way.

[xyz1]

Thank you for your timely reply and advice...as soon as I had a legal question I KNEW to come right here...you have helped me for many years now...

THANK YOU

[momto2]

Just to clarify.... you say BM's MOM called and "she" has the paperwork and will be there to pick up.  Meaning BM will be picking up (which I believe violates the TRO), or do you mean BM's MOM is planning to do the pick up?  (which wouldn't necessarily violate the TRO, but on the otherhand do you need to turn the child over to someone other than mom?).  I'm just wondering if she's getting around the TRO problem by having someone ELSE pick up the child?

Momto2

[socrateaser]

>Just to clarify.... you say BM's MOM called and "she" has the
>paperwork and will be there to pick up.  Meaning BM will be
>picking up (which I believe violates the TRO), or do you mean
>BM's MOM is planning to do the pick up?  (which wouldn't
>necessarily violate the TRO, but on the otherhand do you need
>to turn the child over to someone other than mom?).  I'm just
>wondering if she's getting around the TRO problem by having
>someone ELSE pick up the child?
>
>Momto2

Poster says that the TRO covers the child. If so, then the BM can't be in proximity to the child, regardless of who is delegated to pick the child up. However, you're correct, that the BM's mother would not be directly restrained from coming within the protected persons' proximity.

[momto2]

So, hypothetically (sorry, I know you hate those).....and it probably doesn't affect the original poster, but now I'm curious...

If there's an order that says anyone can pick up for visitation, and BMs mom says she's coming to pick up on BMs behalf, and will be keeping the child during BMs time, guaranteeing that BM will NOT be anywhere near the child, but that she (grandmom) has been designated by BM to pick up and to care for the child on time....

...would it still be OK to not give the child to BMs MOM?  

Momto2

[xyz1]

Thank you for raising questions that were going through my mind LOL

It is not listed in the court order about anyone else doing pick ups or drop offs - but it doesn't say just BF and BM either

BM has been having other people call my house for the past week now but I wont answer the phone...they just leave messages and she was just served today so that wasn't breaking the RO

[socrateaser]

>So, hypothetically (sorry, I know you hate those).....and it
>probably doesn't affect the original poster, but now I'm
>curious...
>
>If there's an order that says anyone can pick up for
>visitation, and BMs mom says she's coming to pick up on BMs
>behalf, and will be keeping the child during BMs time,
>guaranteeing that BM will NOT be anywhere near the child, but
>that she (grandmom) has been designated by BM to pick up and
>to care for the child on time....
>
>...would it still be OK to not give the child to BMs MOM?  
>
>Momto2

Tuff question. Issue is whether the originally custody orders are for custody or visitation and whether the TRO expressly revokes custody. Custodial rights can be delegated to another person, visitation cannot be.

So, if the BM has custody rights then she can delegate them to her mom, and unless the TRO expressly revokes the custody rights, then the BM's mom can pick up the child. If only visitation is granted, then the BM's mom can't pick up the child regardless of whether there's a TRO or not.

[socrateaser]

Ther sheriff's deputy will not make such fine line distinctions, because he/she doesn't really understand the law. He/she will simply read the TRO and if the BM's mom isn't named then she can't be arrested on the TRO.

But, you still don't have to turn over the child to her, unless she can demonstrate that she has express authority from the other parent who has custody rights which have not been revoked by the TRO.

And if after all that, the BM's mom refused to leave, the sheriff could arrest her for trespassing.

[Sunshine1]

All the other people calling on BM's behalf is 3rd party harrassment and should be reported also.  This happened to us we had every Tom dick and Harry calling us to cuss us, yell at us, and threaten us and they were all warned one by one by the Sheriff and it stopped.  In MN the TRO expressly explains this in the orders.


Side note..

1. BF has Full Physical Custody and 50 Legal.  EOW BM has "visitation" is the word used in our orders or "parenting time" throughout. Soc, I keep seeing that you say "visitation" vs. "custody". What would you classify that scenario under? Custody rights or Vistation rights?

[socrateaser]

>All the other people calling on BM's behalf is 3rd party
>harrassment and should be reported also.  This happened to us
>we had every Tom dick and Harry calling us to cuss us, yell at
>us, and threaten us and they were all warned one by one by the
>Sheriff and it stopped.  In MN the TRO expressly explains this
>in the orders.
>
>
>Side note..
>
>1. BF has Full Physical Custody and 50 Legal.  EOW BM has
>"visitation" is the word used in our orders or "parenting
>time" throughout. Soc, I keep seeing that you say "visitation"
>vs. "custody". What would you classify that scenario under?
>Custody rights or Vistation rights?

Orders that mix visitation and custody are confusing and bad drafting in my opinion. Visitation is a license to personally visit the child. Custody is the right to control and care for the child. Hybrid orders like yours are ambiguous and not useful.

Physical custody is the right to day-to-day control over the child. Legal custody is the right to make major long term decisions as to the child's welfare. If a parent has sole physical custody and the other parent has visitation, then the visiting parent has only a non-delegable license to visit the child, despite the power to make long term decisions regarding the child's welfare.

This is a non-sequitur, because there are almost no circmstances where the NCP parent's decision cannot be overridden by a subsequent decisions by the custodial parent. In short, your order was made to throw the custodial parent a bone, so he felt like he was getting something, when in reality, he wasn't getting much of anything. About the only thing that such an award permits is the possibility to stop a move away because it's not in the child's interests, or something like cosmetic surgery or enrollment in a religious school in preference to a public school.

Other than that, any order that allocates physical custody, visitation and legal custody, is probably too ambiguous for any reasonable interpretation.

The better practice is to award joint legal custody and primary and secondary physical custody. The word visitation should only be reserved for situations where an NCP is a real problem for the child and heavy restrictions on access must be maintained. Otherwise, visitation should never appear in any order, because it degrades the NCP, and unnecessarily complicates the legal interpretation of the orders.

Having said all this, if you want me to analyze a particular situation, you'll need to give me a set of facts to which to apply your orders.