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Marsha411JD
Marsha411JD, Lawyer
Category: Criminal Law
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Experience:  Licensed attorney with 28 yrs. exp. in criminal law
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I am have been trying to take care of my grown; ex convict

Customer Question

I am have been trying to take care of my grown; ex convict son and an emotional problematic son for the last two years; kind of long distance. They have been living with their father for about 12 years. Their father has been irresponsible and negligent. The boys refuse to leave their father. They are dependent and used to being with him, regardless of the emotional and financial abuse I feel is happening; they. My boys do not feel this and is used to it. Unfortunately, from time to time, I have had to respond or talk to my ex husband, which infuriates me. So, I do long explanation of texting. In the past, my ex took advantage of my concern for my boys and talking to him..by turning the conversation into a sexual harassment on the phone. He is not able to do this anymore, because I went to court to stop this by activating a restraining order I had since our divorce, and I have taken to have a third party talk, or text for me to my ex husband about the boys. This happens to be a policeman friend. But now, I find I am texting to him with name calling regarding my grown sons, who he controls. I am sure ex enjoys my concerns and anger. I feel he will use this against me, as harrassment. Is this possible?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for your question. However, I am unclear from the facts as you stated them, what exactly you think might be construed as harassment. Are you saying that you are sending continuous texts to your ex and has he told you to stop? You mentioned a restraining order, who does it apply to and what does it prohibit?

Thank you
Customer: replied 1 year ago.

This is about possible harassment turned around.. In discussing a problem, my ex tactics is to turn a topic around or lie out right. I would start off texting about an issue concerning my son(s) and I want a direct answer. Generally, he would not give a direct answer to the issue or a solution. My ex does not want me to be happy or to help me help my sons. Ex would change the topic, by accusing me or blaming me for the problem or saying I am crazy. When I try to give my defensive explanation or my analysis of the problem. I find it is too much over his head and he results to not acknowledging his role, or responsibility..for why the boys are acting the way they do. So, many times it is useless and frustrating to a mother , me that i have to get my ex cooperation..because my boys are beholden to his financial dependency and emotional ties.


Like i said, I tried to get my son cooperation first by themselves, but it is not enough to convince them. They do not understand. Then I had called for a third party to be involved; help communicate, and spoke to son counselors, doctors, and even the Adult protective Services to no avail. I could not afford to do the Guardianship years ago., and now it is too hard to with their resistance. So, I have been texting on and off to no avail and I am going to stop again. My ex has started to provoke purposely on the text, and now I find I would text many times, and now sometimes I call him names..as irresponsible and selfish names. I am I afraid he will turn this as me harrassing him.


Ex is mad I have some of his money from divorce, and is mad I activated and informed the authority that he has been sexually harrassing me. The restraining order apply to him to protect me. We were divorced in another state and now we are in New York and it is activated . The restraining order prohibits any communication to me. I generally stop texting if he says stop or continue to text about my son a little more.

Expert:  Marsha411JD replied 1 year ago.
Hello again Sandra,

Without knowing what the restraining order says specifically about communications I am operating a bit in the dark here. But I can say from my experience, that if it says no communications at all, then you are as much in violation as he is if you are texting him. In addition, if you are continuing to text him after he says stop, no matter how long it is that you stop, that could be a basis for a harassment claim. You can see a copy of the NY harassment statute below that makes certain types of communication criminal, which would include texting if it "in a manner likely to cause annoyance or alarm."

Based upon what you have told me, I would strongly recommend that you stop texting, or having someone else text your ex. If you have concerns about your sons, you are better off hiring an attorney to assist you with the issue.

Please let me know if you need any clarification or have a related follow up question. I would be glad to assist you further if I can.

§ 240.30 Aggravated harassment in the second degree. A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or 2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or 3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or 4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years. 5. For the purposes of subdivision one of this section, "form of written communication" shall include, but not be limited to, a recording as defined in subdivision six of section 275.00 of this part. Aggravated harassment in the second degree is a class A misdemeanor.
Customer: replied 1 year ago.

I am not happy with your response or maybe I do not understand it well. But I do understand that you said EVEN IF MY RESTRAINING ORDER SAID FOR HIM TO NOT COMMUNICATE to me. The Restr. order also pertains to me..to NOT TALK TO HIM ALSO. IS THIS CORRECT??

 

How can my texting to ex. about my son issues, such as school, taking their medicine correctly, or their disturbed behaviors be wrong. The Ex is the house parent guardian to take care of them. He is irresponsilble, and neglectful; even deliberately to hurt our emotional disturbed sons, inorder to provoke me.

 

So, is my texting to him (concerns/upsets) can be considered HARASSMENT? I DO NOT UNDERSTAND WHAT SECOND DEGREE OF Harassment means.?

Of course, I had to warn my Ex, that I will inform others about his poor behaviors and wrong doings to our sons.; To try to get his cooperation.!

 

Is this harrassment ? Can he uses this TYPE OF COMMUNICATION as harrassment ?

 

In OUR PAST, the courts did not even charge him for sexually harrassing me..It was his word against my word. He did this over the phone for years, until i went to court to reactivate my RO. and use a police officer to communicate. Now it is like my ex is deliberately trying to hurt my sons..to set me up. for harrassment. What am I to do?

.

 

 

Expert:  Marsha411JD replied 1 year ago.
Hello again Sandra. I can understand your frustration with your situation. However, you asked me a legal question and all I can do is provide you with the law, which I had no hand in writing, and also can only answer based on the information that you provide to me. I have no special knowledge of your situation outside what you have told me and of course, have no idea what your restraining order says. However, as I mentioned, a restraining order goes both ways in the sense that you cannot use it as a shield AND a sword. You cannot communicate with him and then him not be able to communicate back. That is just not how the courts meant for restraining orders to work.

I provided you with the harassment law of NY, and I can tell you again that if he has asked that you not contact him further, then you must stop and must use the legal system to take care of any legal concerns you have. That is why I told you that you will need an attorney if you want to continue to pursue your concerns about your sons. If you want to continue to contact him, then you need to be prepared to be charged with harassment. Will a court convict you, I have no way of knowing and can't say since I am not the judge or jury and don't have all of the facts including those from the other side. I am trying to help you here as much as I can, to stay out of trouble.
Customer: replied 1 year ago.

I am sorry. i hear what you are saying, that I need to stop communicating to ex. This is the opposite of what I was advised I can do..according to / from my police officer friend.


I am having a migraine headache trying to read and understand all this. It is contrary. I am going to read up on second degree later, and if you don't mind, I can get back to this again.


I need to get away and take a break..if you don't mind. Thank you

Expert:  Marsha411JD replied 1 year ago.
No problem at all. You can ask follow up questions whenever you need or want to. I would recommend though that you sit down with a local attorney who can go over your restraining order and your specific situation with you and actually give you informed legal advice. As you have read on this Site, we are not allowed to provide legal advice or legal opinions since we cannot form an attorney-client relationship with the customers. So, I can only provide information, which I have done and general recommendations.

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