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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 114818
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Filed dvpo and no contact during custody trial. Trial judge

Customer Question

Filed dvpo and no contact during custody trial. Trial judge assigned to custody opted another judge to hear the ex parte. Ex parte denied. Hearing scheduled. Motion for dvpo and no contact opening statement heard. I'm pro se. Father of child and his fiancé represented. Their attorney filed for motion to dismiss with prejudice and sanctions. Judge heard no testimony or evidence. Only heard attorney lie about evidence I had was obtained illegally and we were in an ongoing custody case. Judge in custody, again I'm pro se, ruled evidence that proves brainwashing and mental, emotional harm to child and our relationship, inadmissible.... Police officer testified in custody how I obtained evidence and it was not done illegally. Back to dvpo and no contact... Judge stated he would pull the custody file and get back to us. Clerk left me a voicemail a few days later, "motion dismissed and I have to pay $1000 in attorney fees." Their attorney drew up order, sent to me in email, I opposed to it. She had judge sign order containing all false findings of facts. Dismissed with prejudice, attorney fees, AND other judge ruled evidence obtained illegally. No evidence heard, no hearing, no witness testimony. All because it's a custody battle and I'm pro se. I should note that father only has a permanent visitation order and is trying to gain full custody of our daughter. The system is failing the good people that can't obtain counsel.
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
What can i do? Order was signed on March 6 and the clock is ticking....
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you object to this final order, then your only recourse is to immediately file a "Motion to reconsider" and "Notice of Appeal" both at the same time. In the motion to appeal you need to explain why the information was not illegally obtained and why the judge should have considered the information in their decision. In the notice of appeal you need to argue that him denying admission of your evidence was an error and an abuse of the judge's discretion.
Furthermore, if there is domestic violence, the local legal aid office can assist with legal representation and so can your local spousal abuse center who many times has pro bono attorneys to work through them to assist victims of domestic violence.
Customer: replied 1 year ago.
you stated motion to reconsider and notice of appeal, but then you stated motion to appeal. notice or motion?
Expert:  Law Educator, Esq. replied 1 year ago.
These terms are used interchangeably, sorry for the confusion.
It is technically a notice of appeal.
Customer: replied 1 year ago.
is there a time limit on this? it was signed on 8 March. The dvpo and the no contact were for the harassment and the brainwashing of my daughter by both people. I have zero faith in the legal system since this custody case. I asked another question separately. The evidence I have that was ruled inadmissible during child custody hearing is the evidence I tried to show and present for the dvpo and no contact court date; no hearing (evidence presentation, testimony, etc.) was held for the dvpo and no contact date. I can give you specifics if you need because I cannot believe the judge didn't take any of that into consideration to actually reconvene for a hearing. The judge "trusted" the attorney's opening statement and then pulled the custody file to render his decision. Biased to say the least. Nonetheless... the other question I raised on this website is the GAL I asked to be appointed in the custody matter. My daughter's father and I have a "visitation order". It was ruled permanent when his attorney tried to have my attorney disqualified; unsuccessfully. Long story short, I am currently pro se. I tried to seek another attorney but he didn't have the time my case needed. The GAL testified and actually lied on the stand. The only proof I have of that is the evidence that was ruled inadmissible. Is there ANY way that the judge can reconsider the evidence since the GAL committed perjury? The hearing for motion to modify custody is not over yet.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You have 30 days from the entry of the final judgment or order on the matter to file the notice of appeal. You then have to contact the court reporter to order the transcript of the hearing to be sent to the appeals court.
You would bear the burden of proving the GAL lied or committed perjury, but yes, if you have evidence the GAL lied in their testimony you need to present that to the court and ask the court to reconsider on that basis.
Customer: replied 1 year ago.
The court here gives you a cd upon paid request. I have the cd. They don't provide transcripts.
Would a judge be "obligated" to reconsider based on that knowing that the GAL was appointed by him and the GAL is actually an attorney??? Honestly? Because I am really tired of wasting my time all to hear "I'm sorry...".
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You need to submit the record from the court below to the appeals court on the appeal. The court is supposed to reconsider based on valid legal arguments and evidence, yes.
Customer: replied 1 year ago.
Can you say that again in plain terms? the court of appeals is supposed to reconsider or the district court can since our hearing isn't completed yet???
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
No, the lower court is supposed to reconsider their ruling upon you presenting them valid legal grounds to do so. If they still deny you reconsideration, then to take it to the appeals court you have to ask the court for permission to take an interlocutory appeal to the appeals court or you have to wait until the case is over and then use this as one of your grounds of appeal of the whole final order.
Customer: replied 1 year ago.
Wow. Ok... it's a lot to handle and I wish I was able to secure counsel.
I think I just confused myself. To make it crystal clear... the evidence I came upon was ruled inadmissible in the custody matter that has a GAL who committed perjury, but without the evidence being admissible in THAT hearing, I can't prove it. The same evidence that I have was not heard in the DVPO and NO CONTACT hearing to which evidence, testimony, etc. wasn't heard and the ruling on that was "dismissed with prejudice", the findings of fact were that "Judge X ruled that Plaintiff (me) had obtained certain evidence illegally and that any evidence obtained illegally was inadmissible in court", and sanctions placed against me having me to pay $1000.00 in attorney fees.
Two separate civil court sessions, two separate judges, same parties (child custody and dvpo/no contact) with the SAME evidence.
I can't bring the two cases together and have the first judge overrule the second judge since the first judge did NOT rule it inadmissible due to obtaining it illegally? I have to file a Motion to Reconsider in both cases or just the dvpo/no contact order?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You have to attack it on the basis that the evidence should be admissible. If the evidence was indeed obtained illegally though the judge was correct in that it would not be admissible.
You have to file each case separately to ask the court to reconsider and if possible you need to find some other evidence to support your case besides the evidence they claim was illegally obtained, just in case.
Customer: replied 1 year ago.
The evidence should have been admitted, however, I don't know the rules of evidence and must have not covered all of the elements. The evidence was obtained 100% legally and I even subpoenaed the police officer (that investigated the stolen property report that the fiancé made) and he did testify to the evidence was not stolen. My 7 year old brought a cell phone to our home after an extended visit at Christmas. The cell phone was on her bedroom floor within minutes of her arriving home. At first, I thought the cell phone was my 11 year olds iPod he got for his birthday last year. It was not. There was no code on the phone. No security. When I realized it wasn't my son's, I thought her father gave her a cell phone for Christmas. I initially went through the phone making sure it was appropriate for her. Upon further examination, I determined the phone was NOT acceptable for her since there were pictures on their that her eyes should never see. I had the phone for 9 days, in my possession at all times. I had the GAL review the "brainwashing" videos. She seemed concerned. However, when we had the calendar call, she made the other parties aware that I was in possession of the cell phone. That night, the police came to my home with a stolen property police report. The officer asked to speak to my daughter after speaking with me and telling him how I came about the phone. I had not spoken to my daughter at all about the phone. He spoke to my daughter and after which, he stated the phone was not stolen, but also, did not belong to me. I didn't give him the phone. At the beginning of the hearing, the judge heard the testimony to determine whether the cell phone would or wouldn't be admissible. He ruled it to be inadmissible. Because of that, I felt it best to protect my daughter and myself, by filing the DVPO / NO CONTACT Orders. And I told you the rest. I don't understand why 1. the phone wasn't initially admissible, and 2. how the DVPO/ NO CONTACT Orders didn't even receive due process. Is it because we are in a custody battle? If so, why are the courts not there to protect my daughter and the relationship that I have with her? The videos of brainwashing by the father, proof that the fiancé videotaped another session with my daughter brainwashing her after I confronted my child's father that the fiancé hit our daughter, and voice recordings of the GAL visit and a phone call between myself and my daughter during her visitation. These matters, as well as the perjury by the GAL, should be heard!
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You need to get a copy of the NC rules of evidence and review them too so you can make a proper argument, http://www.ncleg.net/gascripts/Statutes/StatutesTOC.pl?Chapter=0008C.
If the phone was in your daughter's possession when the child was with you, then you have the argument that as a responsible parent you have every legal right to check her phone. You have to argue why you had a right to look at the contents of the phone based on your parental responsibility. You have to argue that in addition to deprivation of your right to due process on the DVO.
Customer: replied 1 year ago.
Can I file a Motion to Reconsider for the child custody judge to "reconsider" because of the perjury???
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
Perjury could be one of your grounds for reconsideration, but you need to attach proof of the perjury, not just your word he perjured himself.
Customer: replied 1 year ago.
you believe a judge that appointed the GAL is going to accept that?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
If you attach evidence of the perjury, the judge has to consider it.
Customer: replied 1 year ago.
The ruling on that judge was that the phone is "inadmissible in this custody hearing". He was very specific with "this". So, if the phone is inadmissible, you are stating that I can, in fact, present evidence from the phone he ruled inadmissible... as evidence to the Motion for Reconsider?
Customer: replied 1 year ago.
Can I subpoena the emails from the GAL to and from my daughter's father that were sent/received during the GAL's "investigation" leading up to the writing of the GAL report?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You have to argue why it is admissible in accordance with the rules of evidence I sent you the link to above and then it could be considered in the motion to reconsider. You can subpoena communication between the GAL and the other parent as well, yes.