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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12201
Experience:  Attorney experienced in all aspects of family law
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My husband and I are going though a custody battle at the moment

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My husband and I are going though a custody battle at the moment as well as divorce. He was removed from the home due to holding a gun to my head and to himself. He threatened me many, many times. He would use a belt to scare my son for punishment. He also used a very scary mask to scare my son, he was at the time 3 years old. I am the only included on the protection order. My son had his first overnight visit last week and he seems to be acting very differently and upset. The EPO in effect for the next 5 years, and the courts have done little to help my son. My current husband was removed from the residence by the Sheriffs because he was potentially going to cause harm to himself my son and I. My question is, he has supervised visitation at his home, but my son is coming home and seems to be being brain washed. There is a GAL involved and I cannot seem to get her to listen to my concerns. My son also sees a therapist. I do not want to keep my son from his father, but I am concerned for his sanity at this point. He is having bad dreams, said he always gets in trouble at his fathers and is miserable, what can I do? He confided in me tonight that he is always in trouble at his dad's house. He states he doesn't have to mind me because his father says so. I am very worried and I don't know how to go about getting his visitation reduced or supervised.
Submitted: 9 months ago.
Category: Family Law
Expert:  Brandon M. replied 9 months ago.

Brandon M. :

Hello there.

Customer:

Hello, did u get a chance to review my question

Brandon M. :

I did. Thank you.

Customer:

So can you tell me what you think?

Brandon M. :

You said that you have spoken about this to your son's therapist. What does the therapist have to say?

Customer:

The therapist has met with my son and my ex during sessions, and he can really play the game. I think she sees through him, but says he is entitled to see his son. Which I agree with, but I am afraid this may be causing psychological harm.

Customer:

I was told the only way to cease all visitation is to have a psychologist deem him unsafe. I feel very helpless in this situation.

Brandon M. :

Does the therapist have an opinion about whether it is in your son's best interest to continue with the current custody schedule?

Customer:

She says she wants to gradually move him into rule 17, if he tolerates it. But the courts aren't here to see what this young boy goes through. He is really having a rough time.

Brandon M. :

How was this therapist selected?

Customer:

By the GAL

Brandon M. :

You said that you were told that the only way to cease all visitation would be to have a psychologist deem your ex unsafe. Who said that?

Customer:

And the GAL is a joke, I would like to fire her, but I'm not sure if I can since she

Customer:

My lawyer who I've given tons of money to, and he doesn't help me or answer my questions in anyway

Brandon M. :

Ok, let's first clear something up. A custody order is determined based on the best interests of the child involved. If the evidence shows that a child's best interests are served by having no visitation with a parent, then the court has the authority to make that order with or without a psychologist's professional opinion. Naturally, a psychologist's opinion is helpful if it support that outcome, but it isn't necessary under every circumstance. Perhaps your attorney merely meant that he felt it would be necessary given the evidence available in this specific case, but there's no rule saying that a psychologist must deem a parent unsafe in order for a parent to not have visitation. That's not the law. The law is that the order is based on the child's best interests.

Brandon M. :

How old is your son?

Customer:

He is four. He was three when this all started.

Brandon M. :

Is there a reason why you are not seeking a full psychological evaluation of your ex?

Customer:

My lawyer told me that is the only way, to come up with 3 grand more in money to pay for the shrink. I am really struggling with finances anyways. My lawyer doesn't want to help me

Brandon M. :

Let's discuss this in terms of evidence. What evidence do you have right now that support the notion that your son would be better off with no contact with his father?

Customer:

Well he had many many guns in my home that he didn't keep secured. he held a loaded gun to my head and to his, a few times. He spanked my son several times a day for small things that could've been handled very differently. One aspect of the EPO was that he had no guns in the place he was staying and during a home visit from GAL she found a gun. They said they removed it, but that was never confirmed to my satisfaction. My son is coming home upset and crying after every visit and it takes me until almost the next visit to get my son back to normal. My son went from August until December without any contact with his father, then supervised visitation started one hour in the visitation center until Feb, then he began home visits, being "supervised" by my ex's sister. Then last weekend his first overnight visit. He doesn't have his own room and he says his dad wrestles with him and it hurts and when he cries his dad gets mad at him.

Brandon M. :

Thank you for that information. It appears that you may still be typing. Please let me know when you have completely finished writing your answer. Thanks.

Customer:

My ex had left several of his belongings in our home, when I contacted my lawyer to have him pick his stuff up, his requests were for his ammunition and the scary mask that he tortured my son with. I cannot imagine why he would need that back.

Customer:

that is about it

Brandon M. :

I'm very concerned that your attorney feels that nothing more can be done without a psychological examination. That said, when someone is represented by counsel, the attorney is responsible for making procedural and strategic decisions for a case. So if an attorney is making the wrong decisions, the options are to continue working with that attorney, to hire a new attorney, or to represent yourself.

Brandon M. :

The nuances of every case are different, so this information should not be construed as complete or advice without consulting in person with counsel. That said, you listed several things that concern you about the situation. Some of them are more legally significant than others, and some are probably difficult to prove (he said/she said), but what it is always significant to me when a child is returning from a parent's care crying and upset. That's a warning sign, and any trained professional should see that as a problem.

Customer:

I have asked him to be my advocate in this matter and he gets upset if I ask him to fight for less visitation by saying he already knows what the magistrate will order. This has been going on for almost a year, is it too late to find new counsel. And how do I go about representing my self

Brandon M. :

To quickly conclude my last thought, what I might do when a client is in that situation is (1) bring in objective witnesses who can attest to the child's behaviors after returning from the parent, and (2) have the child examined by a psychologist and/or independent therapist. Naturally, a full psychological examination of a parent is going to be costly, but it would be a component of an ideal situation. #1 would be important simply because a court can't be there to see what is going on, but at least someone who is not the parent and can provide some objectivity can tell the court on your behalf.

I wouldn't assume that it is too late to find new counsel in your specific case, and I think it would be a mistake to make that assumption. That said, you have the right to represent yourself, and the cleanest way to do it is to just ask your attorney to remove himself as counsel of record and to provide you with your case file.

Brandon M. :

Does that make sense?

Customer:

One more thing before you go, is there anyway legally stop the visitation because of the mental abuse?

Brandon M. :

Because custody is ordered based on the best interest of the child, the courts have authority to order visitation terminated if the child's best interests would be served by terminating them. Mental abuse is certainly not in a child's best interests, so it would just be a question of whether the evidence shows that the mental abuse warrants termination of the visitation altogether.

Customer:

So how do I get that to happen before next Saturday? I feel helpless.

Brandon M. :

The first thing that you have to acknowledge is that there is rarely a smoking gun in these types of cases, so you have to look at the totality of the circumstances. There are plenty of potential ways to prove things in these situations, just like there are lots of ways to prove things in life. How would you prove that you went to the grocery store today? You might show a receipt of purchase. You may have a credit card record. Perhaps you ran into someone at the store that recognized you and would remember your being there. Maybe you were issued a traffic citation outside the store's parking lot. You would also have groceries from the store in your home. You know it is true, so you just have to look at your circumstances and figure out how to show someone else it is true too. You don't have to prove it beyond a reasonable doubt--only that it is more likely than not.

Customer:

I mean who do I contact, because my lawyer and the GAL are NOT listening to me. I have an appt with his therapist this week. Im hoping she can get the ball rolling, but I don't want to put all my eggs in one basket. I need to make this happen and quickly because my son is at risk.

Brandon M. :

I'm not sure that I understand the question. Contact to do what? I do apologize.

Customer:

Who do I contact to cease visitation until the matter is investigated

Brandon M. :

Visitation is determined by court order, so a motion would have to be filed in the court. Generally speaking, when there is an imminent danger of significant, irreparable harm, the court can make an emergency temporary order to change visitation.

Customer:

Ok so who do I call then.

Brandon M. :

Are you planning to have your attorney terminate his representation and to proceed without counsel?

Customer:

I probably will try to find a new attorney. I am scared to do this alone. Im a nurse, law is not my thing. I don't know where I would even begin

Brandon M. :

The reason I ask is that an emergency change in custody would require filing a motion, and that is something that a party cannot do themselves when represented by an attorney. In other words, if you have an attorney, the attorney alone can file the motion. So it would have to be through your existing attorney. If you fired your present attorney and hired a new attorney, the motion would have to be filed through your new attorney. Only if your new attorney no longer represented you would it be possible to file a motion yourself.

Brandon M. :

I meant to say that only if your present attorney no longer represented you and if you did not have a new attorney would it be possible to file a motion yourself. I apologize for any confusion.

Customer:

Ok thank you. I am going to call my current attorney 1st thing Monday morning and if he doesn't comply I will find a new attorney and have him file the motion

Brandon M. :

Yes, and let me recommend that you find a new attorney first. The new attorney can alert your old attorney that you are switching representation, and it makes sure that there is no gap in your representation.

Customer:

Ok thank you. I will do that. Thank you for your help.

Brandon M. :

My pleasure. These sorts of problems can rarely be solved in a night, but I hope that this was helpful to your understanding of the law. I wish you the best.

Customer:

Thank you.

Brandon M. :

Certainly, and please feel free to leave a positive rating once you are completely finished. Thanks.

Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12201
Experience: Attorney experienced in all aspects of family law
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