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

[jszanko]

I have a Relief From abuse- Restraining Order hearing on 30-JUN-06 after my XGF had me arrested for restraining her from biting me.  I have never been in a situation like this before as this is my first brush with the law for anything.  

We have 2 children, both boys, ages 3 Years and 11 months.  In the affidavit for the RO she claimed i punched her 6 times and messed her jaw up, and i'm not sure what she said in the police report but i think it was 2-3 or 3-4.  

I have a couple of questions about what to expect at this hearing.  We all reside in the state of Connecticut and the case will be heard in a Connecticut court.

1. Will this pending DV case have a severly negative impact on my chances for visitation with my sons seeing as though i have no prior criminal record?

2. Am i allowed access to the police report that was filed against me and if so can it be used to prove inconsistencies on the affidavit and the report when it was filed?

3. Would filing a petition for Custody/visitation before the hearing improve my chances of getting any type of custody/visitation rights with my boys?

Thanks for you time.

[socrateaser]

>1. Will this pending DV case have a severly negative impact on
>my chances for visitation with my sons seeing as though i have
>no prior criminal record?

Probably, because, if you don't prove the allegations false, then that evidence is admssible in a custody/visitation action as proof of propensity for violent behavior.

In ordinary civil cases, and criminal cases, such evidence is not generally admissible, except to show motive, opportunity, intent, knowledge, absense of mistake, identity, common scheme or plan.

But, in a custody action, where a person's behaviors/traits are relevent to their fitness to parent, pretty much anything goes, unless it's so outside the scope of issues that the court would find it irrelevant (e.g., a belief in UFOs would be pretty irrelevant to your ability to parent).

>
>2. Am i allowed access to the police report that was filed
>against me and if so can it be used to prove inconsistencies
>on the affidavit and the report when it was filed?

You are, but frequently, unless you have an attorney, the police will not release the report because it contains contact info for the victim and law enforcement doesn't want to be liable for providing the defendant with the location of the victim, so he/she can strike again.

You can subpoena the report without an attorney, assuming you know how to do it.

>3. Would filing a petition for Custody/visitation before the
>hearing improve my chances of getting any type of
>custody/visitation rights with my boys?

You are misunderstanding the DV hearing. The ONLY issue that will be heard at that hearing is whether or not your xgf's allegations are true. If they are found true, then the curent DV orders will remain in place for the next year. Otherwise, they will be dismissed.

As you were never married, until you actually petition the court to establish paternaty and custody/visitation, you currently have NO RIGHT to access to your children. Mother has sole custody -- you have nothing but a duty to pay support.

Don't shoot the messenger -- the law isn't fair, so get over it now.

My advice to you is to carefully review the allegations made on the DV petition and ask yourself if you were standing in front of God, could you look him/her/it in the eye (or whatever God uses to sense the presence of others) and say, "I didn't do any of these things."

If you can say that, then I STRONGLY advise you to get an attorney and arrange to have a polygraph examination prior to the hearing, so that your attorney can attempt to offer the exam into evidence.

Polygraph evidence is not generally admissible without all parties' consent. But, every judge knows that almost no one can beat that machine in the hands of a competent operator, and so your voluntary offer of the exam, even if the other parent refuses to admit it into evidence, is a powerful statement suggesting that the other parent has invented a story in order to rid herself of her "problem" (that would be...you).

Frankly, wilthout this sort of evidence, unless you can find some third party who your xgf would confide in that would testify that your xgf told her she made the whole thing up, you will lose the DV hearing and be restrained for at least a year from being within proximity of your xgf.

This has nothing to do with seeing the children, as long as the court doesn't view you as a danger. But, in order to get the court to not view you as dangerous, you will likely have to successfully complete an anger management program and then, yes, take a polygraph exam to show that you believe that you are not a threat to your children.

Meanwhile, you will likely be permitted supervised visitation at some third party site -- assuming that you petition for custody/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).

[jszanko]

I have a Relief From abuse- Restraining Order hearing on 30-JUN-06 after my XGF had me arrested for restraining her from biting me.  I have never been in a situation like this before as this is my first brush with the law for anything.  

We have 2 children, both boys, ages 3 Years and 11 months.  In the affidavit for the RO she claimed i punched her 6 times and messed her jaw up, and i'm not sure what she said in the police report but i think it was 2-3 or 3-4.  

I have a couple of questions about what to expect at this hearing.  We all reside in the state of Connecticut and the case will be heard in a Connecticut court.

1. Will this pending DV case have a severly negative impact on my chances for visitation with my sons seeing as though i have no prior criminal record?

2. Am i allowed access to the police report that was filed against me and if so can it be used to prove inconsistencies on the affidavit and the report when it was filed?

3. Would filing a petition for Custody/visitation before the hearing improve my chances of getting any type of custody/visitation rights with my boys?

Thanks for you time.

[socrateaser]

>1. Will this pending DV case have a severly negative impact on
>my chances for visitation with my sons seeing as though i have
>no prior criminal record?

Probably, because, if you don't prove the allegations false, then that evidence is admssible in a custody/visitation action as proof of propensity for violent behavior.

In ordinary civil cases, and criminal cases, such evidence is not generally admissible, except to show motive, opportunity, intent, knowledge, absense of mistake, identity, common scheme or plan.

But, in a custody action, where a person's behaviors/traits are relevent to their fitness to parent, pretty much anything goes, unless it's so outside the scope of issues that the court would find it irrelevant (e.g., a belief in UFOs would be pretty irrelevant to your ability to parent).

>
>2. Am i allowed access to the police report that was filed
>against me and if so can it be used to prove inconsistencies
>on the affidavit and the report when it was filed?

You are, but frequently, unless you have an attorney, the police will not release the report because it contains contact info for the victim and law enforcement doesn't want to be liable for providing the defendant with the location of the victim, so he/she can strike again.

You can subpoena the report without an attorney, assuming you know how to do it.

>3. Would filing a petition for Custody/visitation before the
>hearing improve my chances of getting any type of
>custody/visitation rights with my boys?

You are misunderstanding the DV hearing. The ONLY issue that will be heard at that hearing is whether or not your xgf's allegations are true. If they are found true, then the curent DV orders will remain in place for the next year. Otherwise, they will be dismissed.

As you were never married, until you actually petition the court to establish paternaty and custody/visitation, you currently have NO RIGHT to access to your children. Mother has sole custody -- you have nothing but a duty to pay support.

Don't shoot the messenger -- the law isn't fair, so get over it now.

My advice to you is to carefully review the allegations made on the DV petition and ask yourself if you were standing in front of God, could you look him/her/it in the eye (or whatever God uses to sense the presence of others) and say, "I didn't do any of these things."

If you can say that, then I STRONGLY advise you to get an attorney and arrange to have a polygraph examination prior to the hearing, so that your attorney can attempt to offer the exam into evidence.

Polygraph evidence is not generally admissible without all parties' consent. But, every judge knows that almost no one can beat that machine in the hands of a competent operator, and so your voluntary offer of the exam, even if the other parent refuses to admit it into evidence, is a powerful statement suggesting that the other parent has invented a story in order to rid herself of her "problem" (that would be...you).

Frankly, wilthout this sort of evidence, unless you can find some third party who your xgf would confide in that would testify that your xgf told her she made the whole thing up, you will lose the DV hearing and be restrained for at least a year from being within proximity of your xgf.

This has nothing to do with seeing the children, as long as the court doesn't view you as a danger. But, in order to get the court to not view you as dangerous, you will likely have to successfully complete an anger management program and then, yes, take a polygraph exam to show that you believe that you are not a threat to your children.

Meanwhile, you will likely be permitted supervised visitation at some third party site -- assuming that you petition for custody/visitation.