Back in Court

[LilMe]

I haven't been here much lately.  Things are finally going pretty well!  I left my uBPD husband in April 2016 with nothing.  We fought for custody - it was very traumatic and went 50/50, in spite of his abuse of the children.  Next he sued me for our car (he is blind and doesn't drive) and I bought him out after a bunch of unnecessary legal expenses.  In spite of starting out with no job and nothing, I have managed to fight him off legally with no debt and just bought a house.

A few weeks ago our children 4,9,10 came home from his time with bad bruises on their legs where he whipped them.  I hotlined him and went to our local DFS.  They opened a case and sent me to the sheriff to report the abuse.  He sent it to the prosecutor and told me to get a child order of protection because the children were afraid they would be punished again by their father for telling.  At the initial child order of protection hearing, my ex asked for a continuance because his lawyer could not be present.  We go back to court this coming Thursday.  Our previous GAL was reassigned and seems to understand what is happening (although he didn't seem to in our custody case).  The prosecutor is not taking the case.  He said it was not bad enough abuse to get a jury to convict.  DFS has done nothing.  I kept calling them so yesterday she came to my house and then went to talk to my ex.  I will call Monday to follow up.  Thursday night I was served with a deposition with his lawyers on Monday.  My lawyer will be attending with me.

I am terrified he is going to turn this on me and get me in trouble.  At our custody hearing, he managed to discredit my proof of his abuse of the children (recordings, pictures, etc) and I was charged with contempt of court for withholding visitation.  The judge said I was the abuser for not letting him see the children.  He keeps detailed notes of my every move, has people watching me, and threatens to take me back to court and 'put me in jail' for contempt regularly.  He is now telling everyone involved that I am doing all this just to keep the children from him.  I feel like I cannot protect them!  Worst feeling ever!  My son, 9, has anger issues and already has suicidal thoughts.  I cannot get him counseling without his father's permission and he 'doesn't believe in that crap'.  DFS says they cannot make him agree to counseling because of our current custody agreement.

My lawyer suggested seeing how it goes Monday with the deposition and then offer to drop the child protection order if he agrees to counseling for my son, consequences for any corporal punishment of the children in the future, and my making the final decision on schooling.  Right now he insists on homeschooling and that is a big part of the problem.  He punishes them for making mistakes in their school work!  They are terrified of him.

Any advice or suggestions?  I do not trust the legal system here at all.

[toomanydogs]

Hi LilMe,
  I don't have advice. Thankfully, I have not been in a situation like yours. It sounds just about impossible. I am so sorry.   
TMD

[ForeverDad]

I recall my lawyer telling me years ago, "Courts love counseling."  That was when the temp order gifted her temp custody and gifted me an alternate weekend dad schedule.  She had put our son in counseling trying to get negative advocates.  Sure enough, they refused contact with me that I "was likely to endanger their client or others".  Didn't matter that I had standard unsupervised weekends with our preschooler.  That went on for a yer until the most excellent Custody Evaluator contacted them.  They were still limited because she had custody in the temp order that court refused to change but they were nicer.

I can't imagine court not agreeing with the parent requesting counseling but time will tell.  Two things... .(1) include ALL the children in the request, not just the child seemingly most impacted.  (2) Beware that he may try to force you to use a gullible or inexperienced counselor of his choice or one not in-network.  Typically courts like both parents to be involved.  So this initial approach ought to work:  "Your honor, The kids need counseling.  I've got a short list of reputable experienced counselors, all in-network or pay-scale fees.  (Give a copy of your well-vetted list to judge and lawyers.)  My ex can pick from among them if he wishes.  If he doesn't pick one of them within __ days then I can proceed."  Make sure that request and outcome is documented "on the record" so it doesn't get lost, ignored or reinterpreted to ex's viewpoint.

Back to my story about counseling.  The children's counselors refused to provide records.  (Unknown to me ex had made repeated allegations against me.)  In the periodic divorce hearings I would ask about this.  First time the magistrate said, ask again since you have statutory rights to his records.  Didn't work.  Next time magistrate asked ex, and she agreed, to sign any paperwork necessary for me to get records.  Zip.  Third time, a year later, my lawyer filed for the court to order the records released.  (My lawyer laughed about this since it was the court's responsibility to protect the agency.)  I got the order and in less than two days had over 200 pages filled with all sorts of allegations.  She had started him in counseling soon after we separated in November.  I found out in February.  Fourteen months later in April of the next year I got the records.  That was halfway through the court's two-year temp order.

[LilMe]

Thank you for responding FD and TMD.  Today is the deposition. I am sure it will be awful. It doesn't help that I am so traumatized by all this legal stuff that I have bad anxiety even thinking about it!  I will update after.

[kells76]

Hang in there, LilMe. Going through a deposition sounds really tough. I'm glad for you that your L will be there with you -- you won't be all alone.

Remember the old trick about Yes and No questions: in "normal" life, if somebody asks you "Do you know what time it is?", we say "Oh, yes, of course, it's 12:00!" because we're kind and helpful people. In a deposition, if someone asks you "Do you know what time it is?", all you have to say is Yes or No! You don't have to tell them "what time it actually is". Lean on your L, "gift" yourself some time to slow down and think about the questions, and remember you can answer Y/N questions with just Y/N. Whew! Less talking!

Let us know how things go for you. Good for you for continuing along a path to do what your kids need.

kells76

[ForeverDad]

Many lawyers remind their client to pause before answering.  That will give the lawyer time to object or ask for a rephrase as appropriate.

And you can always ask for a break.  Then you can get input from your lawyer on how you're doing and how best to continue from there.

[livednlearned]

Thank you for responding FD and TMD.  Today is the deposition. I am sure it will be awful. It doesn't help that I am so traumatized by all this legal stuff that I have bad anxiety even thinking about it!  I will update after.

I hope you were given some advice on how to handle your answers in the deposition, and what the purpose of it is.

[LilMe]

My lawyer just called and told me that she thinks they are only collecting information to use against me in a modification at the deposition today.  They are trying to prove that I made it all up just to keep the children from him.  I spoke with the DFS lady today and she hasn't even made initial contact with him and doesn't think she will by court on Thursday.  It has been 3 weeks!  We spoke to the sheriff and he won't testify since he wasn't issued a subponea.  We do have his report with pictures of the bruises and marks and the children's testimony, but I doubt it is enough to get a protection order.  So I guess I have to just drop it all.  And then he will take me back to court for withholding visitation.  The system has totally failed my children, again.

Thank you for your advice, it was excellent.  I will use it when I go back to court again, which I am sure I will eventually.

[ForeverDad]

If you drop or withdraw the case, won't that make it easier for him to make a case against you?  If the court concludes you have information but not enough to be 'actionable' wouldn't that at least provide you with enough information that you sincerely believed it was the right thing to do?  I mean, if you withdraw the case then would that weaken your defense?

While I was in the early days of my separation and divorce my ex withheld my son from me for 3 months when our first (separation) temp order was dismissed, there were no consequences for my then-stbEx.  None.  All that happened was the magistrate made a new temp order for the divorce case.  I realize it may be different for you if you do have an order but if this would be ex's first withholding complaint, if he makes one, then maybe the court will wag its finger at you but (not legal advice) quite probably not much more than that.  Typically contempt cases are, as LnL has commented, pretty much like parking tickets.  No one wants them but it's not the end of the world either, especially for first timers.  It becomes more serious for repeat offenders, eventually.

Follow your lawyer's advice.  If you drop the case out of fear or helplessness then nothing gets determined on-the-record.  Ask your lawyer, maybe all that would happen is that the court would say you have insufficient information to be 'actionable'.  Doesn't mean you didn't have basis for asking the court to rule on the matter.  And losing on the matter - a dismissal - doesn't mean you didn't have some basis to be a concerned parent.  Do you really think a judge would criticize you for being concerned?  Yes, a judge could rule against you but not for being outright wrong.  Just not right enough.  If that makes any sense?

[LilMe]

The last time he beat the children I took pictures of the bruises and the judge wouldn't accept them because they weren't from an official source (police, doctor, child services) and fined me $1000.  His lawyer accused me of doctoring photos and the recording I had.  The judge said I was the abuser and the next time I made up allegations he would send me to jail.  This time the prosecutor backed out, the police wouldn't testify, and child services hasn't even started their investigation so I basically have no 'legal' proof, again.  With no proof, they are not going to grant a full order of protection.  Anything that happens in a deposition can be used against me if he goes back for a modification and my lawyer cannot object to anything they ask because there is no judge present.  I have nothing to hide, but he is evil and smart and manages to twist and turn everything.

The system sucks here.  It protects the abuser.