question about ex parte order

[Mrs. Hyde]

After months of trying to make it work I  filed for divorce on Friday.

I just had a baby in July and my uBPDh was continually doing inappropriate things with and to my son that were unsafe and disturbing.  I documented everything and took pictures, videos and also had access to his email.    My attorney filed an ex parte order for emergency temporary custody with a restraining order and and order to vacate the premise.  The judge approved the same day.  My husband found out about it on Monday and filed the exact thing against me on Monday morning.  He has no claim or evidence but he is a pathological liar and I knew I would have a huge fight on my hands.  I don't think the judge will overturn my order... .at least I hope she doesn't.  I asked for immediate psychological evaluations for both of us which I put up the money for.

My husband has not been served yet.  I know he will try to thwart all attempts of getting served. 

My question is... .if the motion for emergency custody was approved but the person was not yet served is it not active or do I currently have sole custody of my son.  I ask because I think if my husband thinks that the orders approved on Friday are null and void without him being served that he will try to take the baby.  He has an attorney and he knows that my motions were approved.  I have been staying away from him but I want to go home. 

[catnap]

From what I understand, it is not an active order until he has been served.  Keep yourself and your baby away until he can be served.  Check with your L for how things work where you live and if your H's request has been approved.  Make copies of your order so that you have it handy at all times and for anyone you and the baby are staying with. 

My son got the an order (temp sole custody and an RO) for his 7 month daughter and was advised UNTIL is uBPDgf was served it was not active.  We hired a private process server to serve the papers and he was notified immediately that she had been served.

[scraps66]

I would hope that your attorney would be in contact with his, and make sure he knows that he will be served.  I don't think an attorney can credibly play along with the passive-aggressive tactic of ignorance.

[bravhart1]

If he has an attorney then you can serve him through his attorney and you don't have to worry about "finding him".

Stay away and protect you and your baby by any means possible. Good luck 

[ForeverDad]

With your order served, he is legally obligated to obey your order.  Whether he will obey is up to him.  If he violates it then be sure the police and/or court are notified, let him face his Consequences, whatever they may turn out to be.

With your order not served, then even though he may not technically be subject to the ex parte order, you still have the right as parent to keep possession of your child.  He can't force you to do an exchange.  He can plead, he can cajole, he can intimidate, he can threaten but you don't have to agree with any of it.   Even the police won't force you to do an exchange, at most they might try to encourage you to "resolve" the immediate incident but they won't force an exchange at all.  So understand that he can demand whatever he wants but they are toothless demands.  Now that the court is involved, court is The Authority.

With his order filed, it may mean absolutely nothing unless it is granted as an order.  If that is the case, then stay away, keep your child close and follow your lawyer's instructions.  If you already have an ex parte order then it is highly unlikely his will replace yours, the filings are not compatible, they would conflict with each other, at least not until the judge has a hearing where you both appear and then the judge can hear both sides and make a temporary order.

[Matt]

Is there someplace you can stay - maybe with your family - to make sure you and the child are safe right now?

You might also consider talking to the police, to let them know where things stand, and to ask their advice.  They may be willing to have a patrol car nearby, so you can get help quick if you need it.

Your lawyer should be in touch with your husband's lawyer, to make sure you husband's lawyer knows what is going on, and can advise your husband.  For example, his lawyer might tell him, "If you try to take the baby, you will be making things worse for yourself - the judge has issued this order and even if you haven't been served she may not like it if you do the opposite of what she said."

One more thing to consider... .

I don't know exactly what your husband did, but it sounds like it could be something illegal - a crime.

You may have the option to treat this not just as a custody issue, but also as a criminal matter.  That would be a big step to take, and you will certainly not want to accuse him of any crime he didn't 100% for sure commit.  But if you have solid evidence that he harmed the child in some way, you might want to discuss with your attorney - and maybe with your husband's attorney too - whether criminal charges are appropriate.  Opening a huge can of worms for sure, but it could be the right thing to do.

[Matt]

One more comment, about the psych evals... .

I think it's a very good thing that you filed a motion for psych evals, and I think it's also wise to have them done for both parents - the motion is more likely to be approved and you look fair - you're not accusing the other party of anything, you're seeking information to put before the court.

If you can make sure they are objective evaluations - based on objective testing like the MMPI-2 - not just interviews with the psychologist - that will be better.  The reason is that sometimes a person with serious issues can fool a psychologist, and psychologists are usually pretty reluctant to diagnose someone based only on interviews;  they're more likely to say, "H has such-and-such characteristics which could be a problem" rather than "H tests positive for such-and-such a disorder, which puts Child at risk."

The MMPI-2 is designed so it's more-or-less impossible to fool.  My wife tried to fool it, and the results showed she "presented falsely" (that means "lied", and she was diagnosed with BPD and some other stuff anyway.  Costs $500 each but well worth the money to have an objective diagnosis which the court can see.

[livednlearned]

I've filed two ex parte emergency orders.

When there is sufficient evidence, do not worry about the technicality of whether he was served, or this or that. When you file an ex parte emergency order, it means you are asking the court to give you the benefit of the doubt until such a time that all parties can bring forth evidence. Sort of like asking for forgiveness vs. asking permission. Court will find that you took appropriate action, and you'll gain credibility when the hearing comes around and you have sufficient evidence.

Don't be concerned about your ex filing the same motion. It will be clear what he's up to in court.

Do be extra careful right now. I agree with Matt -- tell the police what's going on. Take safety precautions and make sure your cell is charged and on you at all times. Asserting a sudden boundary can cause an extinction burst, so tune your radar to the highest frequency.

[Mrs. Hyde]

Thanks for all the great advice and well wishes

His motion for ex parte was denied

I am going to ask to have the MMPI done because he does often present well when he needs to.  I also have 3 counselors we have seen together that will help keep things real.  One counselor fired him because she felt "scared by loosely veiled threats" he made towards her(the email she sent him is one of the things I have as evidence)

He was served Tuesday.  He sent me an email trying to appeal to me to settle things and that he is not mad at me and he just wants me to have what will make me feel happy and safe.  I told him to have his attorney contact my attorney... .it is interesting how I still want to believe his manipulation despite all the crap he has put me through.  I think it triggers my desire to recapture the person he was during then initial period of idealization... .he was prince charming.  I just have to remember that he is also the prince of darkness.

Thanks again for all the advice it has been very helpful

[Matt]

Sounds like a very good approach - communicating through your attorney, submitting all the relevant evidence, and getting objective psych evals.

I think our members who use this kind of approach, usually things work out pretty well.

[ForeverDad]

Rather than seeking just an evaluation or just a test such as MMPI2, it would be a psychological evaluation including at least MMPI2.  A test can be done but then the evaluator needs to apply that to the person.

When children are involved, there is also a more extensive custody evaluation that looks beyond mental aspects and digs deeper into the behaviors.  Of course, this is much more expensive.  You want to be sure that an experienced, unbiased and perceptive (not easily fooled) professional known for good evaluations is selected.

For example, take the instance of alcoholism.  One person can be an alcoholic drunk and not be abusive. Another can be an alcoholic drunk, be abusive, drive while intoxicated, etc.  And yet another can be an alcoholic yet be able to refrain from drinking or overdrinking.  Each scenario would result in at least slightly different recommendations to the court by an evaluator.

[Boss302]

He was served Tuesday.  He sent me an email trying to appeal to me to settle things and that he is not mad at me and he just wants me to have what will make me feel happy and safe.  I told him to have his attorney contact my attorney... .it is interesting how I still want to believe his manipulation despite all the crap he has put me through.  I think it triggers my desire to recapture the person he was during then initial period of idealization... .he was prince charming. 

You're going to find that a certain amount of living after your divorce will involve keeping your resolve and boundaries up.

[Matt]

Rather than seeking just an evaluation or just a test such as MMPI2, it would be a psychological evaluation including at least MMPI2.  A test can be done but then the evaluator needs to apply that to the person.

When children are involved, there is also a more extensive custody evaluation that looks beyond mental aspects and digs deeper into the behaviors.  Of course, this is much more expensive.  You want to be sure that an experienced, unbiased and perceptive (not easily fooled) professional known for good evaluations is selected.

For example, take the instance of alcoholism.  One person can be an alcoholic drunk and not be abusive. Another can be an alcoholic drunk, be abusive, drive while intoxicated, etc.  And yet another can be an alcoholic yet be able to refrain from drinking or overdrinking.  Each scenario would result in at least slightly different recommendations to the court by an evaluator.

Yeah, this is exactly my experience.

I filed a motion for a custody evaluation;  the other side opposed it, saying there was no reason.  I said, "Our marriage counselor told me that Ms. Matt probably has BPD, and if so, that could put the kids at high risk.  So we need a good Custody Evaluator to consider that and all other factors."  My wife's lawyer and my lawyer called the MC, together, and the MC confirmed what I had told them - not a formal diagnosis of my wife, but her opinion based on what she had seen.  My wife's lawyer backed down and agreed to the CE.  The cost of the CE was $5,000;  I paid, and got half of it back in the settlement.

I had neglected to specify that the CE should administer the MMPI-2, but he did it anyway.  That added $500 for each of us.  My results came back OK - no disorders - but I was surprised that it said I have high risk for addiction - I didn't know that.  I asked the CE what I should do, and he said, "Keep doing what you're doing - keep seeing your counselor, continue to control your drinking, no illegal or addictive prescription drugs, etc.".  Not a problem.

My wife's test showed that she had "presented falsely" and that she has BPD and some other disorders.  The CE's report explained it all and put it in context.  He still recommended 50/50 custody, which was disappointing, but he said over time S(then)8 should probably spend more time with me, which is what happened.  He also recommended psychotherapy for my wife, which went into the court order, which she promptly ignored.

Bottom line, it didn't fix everything, but it strengthened my position quite a bit, and set things up so that if the kids struggled at all I could get more time with them.  My wife's behavior since then has been much better than before, probably because she knows that if she misbehaves I'll go back to court and get primary custody.

Best $3,000 I ever spent.