Unmarried father wonders if pending DV case will hurt my chances for visitation....

[jszanko]

Just a couple more quick questions..

1.  If the charges are dismissed will they have any bearing on the custody/visitation issues?

2.  Is agreeing to a pretrial rehabilitation program that results in the charges being dismissed an admission of guilt and would it have any bearing on question #1?

[socrateaser]

>Just a couple more quick questions..
>
>1.  If the charges are dismissed will they have any bearing on
>the custody/visitation issues?

Of course they will. There will be no evidence that you're any danger to the children or their mother, thus no reason to restrict your access on those grounds. The entire case will then be all about who the better parent is. But, even a lousy parent gets visitation and frequently joint custody.

>
>2.  Is agreeing to a pretrial rehabilitation program that
>results in the charges being dismissed an admission of guilt
>and would it have any bearing on question #1?

You said "charges," and "admission of guilt." Maybe you're misunderstanding legal terms, but, before I can answer you I need to ask:

Were you arrested and charged by the local district attorney for domestic abuse (or for anything else)? Because, if you were, then I can't discuss this matter with you in an open forum, because you may be waiving your 5th Amendment right to refuse to testify against yourself by discussing the facts of the case in public, and/or making a public confession, from which you can be found guilty of a crime.

If, on the other hand, this is the run o the mill DV restraining order obtained by your xgf from a judge, based on her sworn statement that you abused her, then this is still a civil matter and we can talk about it here.

But, in this case, there are no "charges", there are merely "allegations," and there is no "guilt," there is merely "liability."

The legal consequences are huge, so I need to know exactly what's going on.

[jszanko]

I beleive the Affidavit submitted with the DV restraining order trumped up the *allegations* against me and they deviate from the original report taken.  

I only know what the report said by what the police told me and they were vague at best.

1. Would it be a good idea to subpoena the police report so i can be positive that the statements on the report and affidavit deviate rather then assume they do by word of mouth?  


2.  If said statements deviate will they affect the outcome of the hearing?

I really appreciate the time you are spending with me discussing this.  Thank you very much.

[socrateaser]

You didn't answer my question. Let's try again:

Were you charged with a crime by the local prosecutor -- as in:

State of YOURSTATE,
Plaintiff

v.

YOURNAME,
Defendant

Or, were you brought before a civil court by a Show Cause Order, as in:

XGFSNAME,
Petitioner

v.

YOURNAME,
Respondent

[jszanko]

The Form is an application for Relief of Abuse and is worded:Applicant, Respondant so i would assume that is a civil matter.  Perhaps i am wrong in my assumption?  It was submitted Ex Parte thus the hearing scheduled for the 30th..

[socrateaser]

>2.  Is agreeing to a pretrial rehabilitation program that
>results in the charges being dismissed an admission of guilt
>and would it have any bearing on question #1?

OK, based on your other responses, this hearing is a civil matter. However, if you were arrested but then released because the local prosecutor did not believe that he/she had sufficient evidence to charge you wilth criminal domestic violence, assault, battery, harrassment, etc., then depending upon what you might testify to at this upcoming hearing, could potentially be used against you to establish a criminal complaint.

This is not something that I can discuss with you in this forum, because you may make statements which someone adverse to you could find and then use against you to make out criminal charges. I recommend that you discuss this with a criminal defense attorney in your locale.

But, getting back to your specific question, in a civil action, you could agree to stipulate to a rehab program in return for dismissal of the current protective order. Unfortunately, the program will take months to complete, during which time you will lose any possible leverage you may have had to show that you should be entitled to joint custody and substantial parenting time. Which means you will be relegated to the role of visitor, and that sucks.

All of these heavily depends on the precise allegations and your ability to discredit your xgf. THis is definitely not a hearing that I would attend without an attorney, and as I said before, if you think you can successfully defeat the allegations, then I suggest that you do whatever you can to accomplish this.

You spoke about a "pretrial" agreement. This, once again, sounds like a criminal action. If this is just a civil restraining order, then there will be no "trial." The upcoming hearing IS your trial, and whatever is determined there is the entire amount of due process that you will be accorded before the restraining order is made permanent (i.e., one year, with a one year renewal option).