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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36897
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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i came home one night early and found another man in my bed

Customer Question

i came home one night early and found another man in my bed having sex with my wife while my daughter was in the room present. i beat him up and got put in jail and charged with simple assault domestic. shortly after she got a restraining order on me and now he is staying in my house and has been since i cant go there and i am the lease holder and idk what to do?
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question.

I am sorry that you are in this situation. Ultimately, what do you wish to accomplish? I see quite a few issues but I need to know what to focus on. Please advise!
Customer: replied 1 year ago.

i Have a daughter and i want to go for custody of her along with the divorce

Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your follow-up.

Two quick questions if I may:

1. Did you fight the restraining order? Have you had a chance to fight it or is it going to be formally entered against you?

2. Are they pressing charges against you over the assault?
Customer: replied 1 year ago.
No they did not press any charges and I have not yet been served with the papers for restraining order but I know it's coming
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That is actually good news. If you were going to be charged or pursued for the assault, then those grounds can potentially be used against you by your soon-to-be ex by attempting to show you as violent and as someone who is unfit to have custody. Factors that the courts tend to look to are:
history of abuse
neglect
domestic violence
drug use
alcohol abuse
mental illness
criminality (record/history/parole/probation)
moral turpitude
characteristics of the proposed home

As you can see, it is in your best interest to contest the restraining order if it will be coming against you, as that will also affect your fitness. You also can review that list for potential claims that you can make against your ex. When you file for custody, you also have to attack her fitness and those factors are how to do it. This is the best method in seeking custody because the courts look to what they see as in the 'best interest' of the child when they make a custodial decision, and one of those factors is the fitness of the parent who is going to take on and become the custodial parent.

In terms of the divorce, you can go to the county courthouse and obtain a divorce packet from the clerk. The packet will also contact petitions for custody for the child. I strongly suggest that if you are expecting conflict and trouble, for both the restraining order and the divorce obtain counsel to assist you. As a man you are already somewhat disadvantaged, so you would need any edge you can obtain. Consider browsing the listings at www.avvo.com and www.martindale.com for competent counsel.

Good luck.

Expert:  Dimitry K., Esq. replied 1 year ago.
Joshua,

I see that you rated my answer as 'bad'. What specifically did I fail to take into account, or are you just unhappy with the information?

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