Big development - ex parte possible?

[dipper]

HI Soc,

I know this is long, but please bear with me - I feel the facts are important.

We were to go to court on August 23rd to gain custody of son.  BM's lawyer was almost two hours late and the judge postponed the hearing until Nov 1 and son was to remain with bm as primary.  

He did not want to return last weekend with her, but I talked him into it.  He was assigned a GAL.  Friday, I went to see the GAL and his brother was to pick him up.  BM called brother to say she would be bringing son to see GAL and would bring him.  I called son and she had forwarded calls to work and took him with her - saying that she didnt want me trying to persuade him before he talked to GAL.  So, all parties talked with GAL Friday.

Today, I expected things to go peacefully.  Son was saying he didnt want to go, but I thought he would.  I had told him he had to go back for now.  When BM came, he went out and talked to her.  He came back in saying she said he had to go, but he wasnt going.  She has not bought him school supplies and he starts tomorrow - so we told him he could take his backpack and a few clothes we had bought for him to go to school with here.

Son went out and so did I.  He told bm again that he didnt want to go  - she demanded that he had to go to school there, the judge said so.  I told her that she could enroll him down here.  She instantly called me a M**F** liar and said son had never told her he wanted to live here.  Completely false.  She screamed and cursed for quite some time, with son telling her not to talk to me like that.  I did not call her names.  

Son kept trying to talk to BM.  He told her that if she respected him, she would let him go to school here like he wants. BM SLAPPED him hard across the face.  This was totally unprovoked.   He had not disrespected her or made any move against her.  Son pointed at her and told her that she would never hit him like that again.

She hit him so hard, my spouse could hear it in the house with the AC and TV on.  Spouse was going to call police, but spouse's daughter saw who was hit and spouse thought the cops wouldnt do anything.

BM left calling me a sorry MF and SOB.  Son once again told her to stop calling me names.  She went to the police station.  We waited and they never came.  Finally, a police officer called to ask me my side.  I explained to him that I had told my son that he had to go.  I also told the officer that I was not going to force my son physically into the car as he would turn against me.

Then the officer talked to my son - and my son asked if he could file assault charges and a restraining order against his mother.  The officer said he could and to call back in ten minutes.  Ten minutes later he said it would have to be done tomorrow - evidently the magistrate didnt want to be bothered tonight.

At any rate, son is with me - the police would not come and make him leave.  Tomorrow I am going to take son to the station to file charges.  

From there, I am planning on going to file for an ex parte hearing (with assault charges in hand) for temp custody as son is missing school and bm has obviously lost control since things arent going her way.   If granted custody, I am going to the school to enroll him.  I also plan on calling GAL about this situation.

Witnesses to the slap and cursing were my oldest son and my nephew.

Soc, I do not have a lawyer.  We are in Virginia.  Son will be 14 Nov. 1.  

By law, how fast does an ex parte hearing take place?  

Should I call GAL first or take action and then call?

Any suggestions based on what I have told you?

Thank you so much!

[socrateaser]

>By law, how fast does an ex parte hearing take place?  

Depends on local court rules. Call court and ask whether they have special time for ex parte hearings or whether you can come in any time. Then, go in and file for ex parte emergency order for temp custody, on grounds that the other parent is physically abusing the child, and the child is afraid to stay with the other parent.

>Should I call GAL first or take action and then call?

Action first.

>
>Any suggestions based on what I have told you?

I think that I would actually file the ex parte before the criminal assault charge unless child has obvious bruise on face from the assault. This is because without the physical evidence, the police may just pooh pooh the report and then the family law judge may not take you seriously, either. You need the child to go to the hearing and actually testify that he was hit hard by his mother and that he is afraid that she will repeat the process. If you don't, you won't get your emergency order. If the child is not willing to testify, or you think that his testimony will magically change when questioned by the judge, then you're probably wasting your time.

[dipper]

Soc,

Went to court today.  BM already there with an order to have son taken from me and put back with her.   GAL there for other reasons, but he did talk to us.  GAL kept asking where my lawyer was - though I told him last week that I did not have one.  GAL has asked to come out to my home now.

Judge didnt hear one word from us - simply said that son had to go back and that we were both unreasonable.  He said that I should have physically forced my son into the car.  I have asked lawyers over the years and I have always been told that you have to use reasonable effort - such as having child ready and encouraging them to go - but its up to the parent picking them up to force them...  

Judge did not care that son had been slapped.  he simply said he knew charges had been filed and that he would hear that in Nov as well as the other stuff.  Given that he returned son to her care, its not very likely that he considers slapping a child in the face - hard - as a problem.  He never even asked son about being hit.

Soc, I did try to get my son to leave.  It was only when she began to curse and scream that it became hopeless.  I didnt call her names - she cursed me in front of our children.  She slapped our child.  And yet, the court system basically said - so what?  You should have dragged him and shoved him in the car.

They would not even let me file an ex parte.  I requested it and the clerk just kept saying to wait for them to call me into the court room.

The judge threatened to send my son to a foster home if he gets in trouble in school or otherwise.....

Any thoughts?

[socrateaser]

>Judge didnt hear one word from us - simply said that son had
>to go back and that we were both unreasonable.  He said that I
>should have physically forced my son into the car.  I have
>asked lawyers over the years and I have always been told that
>you have to use reasonable effort - such as having child ready
>and encouraging them to go - but its up to the parent picking
>them up to force them...  

There's not bright line. The judge was just making stuff up based on his own discretionary authority. He's the judge, and he's telling you to force the child to go. You could file a motion asking the judge to disqualify himself, on grounds of prejudice agains the child, because he has ruled on a question of the child's safety without considering the facts on the record. This could fail and then you'd be forced to appeal or live with the judge. Neither is a good choice, under the cirucmstances.

>Judge did not care that son had been slapped.  he simply said
>he knew charges had been filed and that he would hear that in
>Nov as well as the other stuff.  Given that he returned son to
>her care, its not very likely that he considers slapping a
>child in the face - hard - as a problem.  He never even asked
>son about being hit.

Judge is old fashioned, now you know, so you'll have to deal with it.

>

>
>They would not even let me file an ex parte.  I requested it
>and the clerk just kept saying to wait for them to call me
>into the court room.

They don't have a choice. You've been in this spot before, with the clerk giving you legal advice, and you discovered that you could file your action whether the clerk liked it or not. I don't know if the ex parte was the right move, in view of the fact that you had a hearing anyway and lost it, but you could have told the clerk, "Thank you, but I have an ex parte motion and I want it heard, and i will take my chances with the court."

>
>The judge threatened to send my son to a foster home if he
>gets in trouble in school or otherwise.....

The judge can't just send the kid to foster care without some legal justification. "Getting in trouble in school or otherwise" is pretty vague and ambiguous. It was just a little "nudge."

>Any thoughts?

Not really. You live in VA -- home of lots of ex military. Your judge may be one. They're not impressed with minor spats -- they need to see blood, before they'll get interested.

[dipper]

HI Soc,

I know this is long, but please bear with me - I feel the facts are important.

We were to go to court on August 23rd to gain custody of son.  BM's lawyer was almost two hours late and the judge postponed the hearing until Nov 1 and son was to remain with bm as primary.  

He did not want to return last weekend with her, but I talked him into it.  He was assigned a GAL.  Friday, I went to see the GAL and his brother was to pick him up.  BM called brother to say she would be bringing son to see GAL and would bring him.  I called son and she had forwarded calls to work and took him with her - saying that she didnt want me trying to persuade him before he talked to GAL.  So, all parties talked with GAL Friday.

Today, I expected things to go peacefully.  Son was saying he didnt want to go, but I thought he would.  I had told him he had to go back for now.  When BM came, he went out and talked to her.  He came back in saying she said he had to go, but he wasnt going.  She has not bought him school supplies and he starts tomorrow - so we told him he could take his backpack and a few clothes we had bought for him to go to school with here.

Son went out and so did I.  He told bm again that he didnt want to go  - she demanded that he had to go to school there, the judge said so.  I told her that she could enroll him down here.  She instantly called me a M**F** liar and said son had never told her he wanted to live here.  Completely false.  She screamed and cursed for quite some time, with son telling her not to talk to me like that.  I did not call her names.  

Son kept trying to talk to BM.  He told her that if she respected him, she would let him go to school here like he wants. BM SLAPPED him hard across the face.  This was totally unprovoked.   He had not disrespected her or made any move against her.  Son pointed at her and told her that she would never hit him like that again.

She hit him so hard, my spouse could hear it in the house with the AC and TV on.  Spouse was going to call police, but spouse's daughter saw who was hit and spouse thought the cops wouldnt do anything.

BM left calling me a sorry MF and SOB.  Son once again told her to stop calling me names.  She went to the police station.  We waited and they never came.  Finally, a police officer called to ask me my side.  I explained to him that I had told my son that he had to go.  I also told the officer that I was not going to force my son physically into the car as he would turn against me.

Then the officer talked to my son - and my son asked if he could file assault charges and a restraining order against his mother.  The officer said he could and to call back in ten minutes.  Ten minutes later he said it would have to be done tomorrow - evidently the magistrate didnt want to be bothered tonight.

At any rate, son is with me - the police would not come and make him leave.  Tomorrow I am going to take son to the station to file charges.  

From there, I am planning on going to file for an ex parte hearing (with assault charges in hand) for temp custody as son is missing school and bm has obviously lost control since things arent going her way.   If granted custody, I am going to the school to enroll him.  I also plan on calling GAL about this situation.

Witnesses to the slap and cursing were my oldest son and my nephew.

Soc, I do not have a lawyer.  We are in Virginia.  Son will be 14 Nov. 1.  

By law, how fast does an ex parte hearing take place?  

Should I call GAL first or take action and then call?

Any suggestions based on what I have told you?

Thank you so much!

[socrateaser]

>By law, how fast does an ex parte hearing take place?  

Depends on local court rules. Call court and ask whether they have special time for ex parte hearings or whether you can come in any time. Then, go in and file for ex parte emergency order for temp custody, on grounds that the other parent is physically abusing the child, and the child is afraid to stay with the other parent.

>Should I call GAL first or take action and then call?

Action first.

>
>Any suggestions based on what I have told you?

I think that I would actually file the ex parte before the criminal assault charge unless child has obvious bruise on face from the assault. This is because without the physical evidence, the police may just pooh pooh the report and then the family law judge may not take you seriously, either. You need the child to go to the hearing and actually testify that he was hit hard by his mother and that he is afraid that she will repeat the process. If you don't, you won't get your emergency order. If the child is not willing to testify, or you think that his testimony will magically change when questioned by the judge, then you're probably wasting your time.

[dipper]

Soc,

Went to court today.  BM already there with an order to have son taken from me and put back with her.   GAL there for other reasons, but he did talk to us.  GAL kept asking where my lawyer was - though I told him last week that I did not have one.  GAL has asked to come out to my home now.

Judge didnt hear one word from us - simply said that son had to go back and that we were both unreasonable.  He said that I should have physically forced my son into the car.  I have asked lawyers over the years and I have always been told that you have to use reasonable effort - such as having child ready and encouraging them to go - but its up to the parent picking them up to force them...  

Judge did not care that son had been slapped.  he simply said he knew charges had been filed and that he would hear that in Nov as well as the other stuff.  Given that he returned son to her care, its not very likely that he considers slapping a child in the face - hard - as a problem.  He never even asked son about being hit.

Soc, I did try to get my son to leave.  It was only when she began to curse and scream that it became hopeless.  I didnt call her names - she cursed me in front of our children.  She slapped our child.  And yet, the court system basically said - so what?  You should have dragged him and shoved him in the car.

They would not even let me file an ex parte.  I requested it and the clerk just kept saying to wait for them to call me into the court room.

The judge threatened to send my son to a foster home if he gets in trouble in school or otherwise.....

Any thoughts?

[socrateaser]

>Judge didnt hear one word from us - simply said that son had
>to go back and that we were both unreasonable.  He said that I
>should have physically forced my son into the car.  I have
>asked lawyers over the years and I have always been told that
>you have to use reasonable effort - such as having child ready
>and encouraging them to go - but its up to the parent picking
>them up to force them...  

There's not bright line. The judge was just making stuff up based on his own discretionary authority. He's the judge, and he's telling you to force the child to go. You could file a motion asking the judge to disqualify himself, on grounds of prejudice agains the child, because he has ruled on a question of the child's safety without considering the facts on the record. This could fail and then you'd be forced to appeal or live with the judge. Neither is a good choice, under the cirucmstances.

>Judge did not care that son had been slapped.  he simply said
>he knew charges had been filed and that he would hear that in
>Nov as well as the other stuff.  Given that he returned son to
>her care, its not very likely that he considers slapping a
>child in the face - hard - as a problem.  He never even asked
>son about being hit.

Judge is old fashioned, now you know, so you'll have to deal with it.

>

>
>They would not even let me file an ex parte.  I requested it
>and the clerk just kept saying to wait for them to call me
>into the court room.

They don't have a choice. You've been in this spot before, with the clerk giving you legal advice, and you discovered that you could file your action whether the clerk liked it or not. I don't know if the ex parte was the right move, in view of the fact that you had a hearing anyway and lost it, but you could have told the clerk, "Thank you, but I have an ex parte motion and I want it heard, and i will take my chances with the court."

>
>The judge threatened to send my son to a foster home if he
>gets in trouble in school or otherwise.....

The judge can't just send the kid to foster care without some legal justification. "Getting in trouble in school or otherwise" is pretty vague and ambiguous. It was just a little "nudge."

>Any thoughts?

Not really. You live in VA -- home of lots of ex military. Your judge may be one. They're not impressed with minor spats -- they need to see blood, before they'll get interested.