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I am writting about a family situation in Alabama. I have two

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I am writting about a family situation in Alabama. I have two grown nephews who are out of a job but the oldest is and has been heavy into drugs for over 10 years. He has now gotten very dangerous. They both live with their mother. The oldest has been very abusive to his mother. Nabors have called the police a number of times to the house because of the loud abuse he was giving his mother. She has tried to get him out of the house but the police said she would have to go through the eviction possess.

She and her youngest son just left the house two days ago because they are in fear for their life. He has now destroy everything of his younger brother's and destroyed most of the inside of the house.

I have been trying to get her to get a restraining order but she was told by a local attorney that was for a husband and wife not a mother and son.

Is that true and what should she do??
Submitted: 2 years ago.
Category: Legal
Expert:  BizAttorney replied 2 years ago.

BizAttorney :

Good evening! I can help you out with your legal question tonight. I'm sorry to hear about the situation. No, a temporary restraining order is not just for husband and wife. It is sometimes called a temporary protective order also.

BizAttorney :

It is for anyone who is in a reasonable fear of bodily injury.

BizAttorney :

She should go to the local courthouse where she lives and fill out the paperwork. There is usually no fee involved and the paperwork is more of a form.

BizAttorney :

The court will accept the form and then serve it upon her son. The court will then set a hearing where she can tell the court of her fears for her safety.

Customer :

That is what I have read and telling her but now I have confermation I will have to talk to her more. I am fearful that somting bad is going to happen

BizAttorney :

I agree and it is always better to be safe than sorry.

BizAttorney :

It will be scary for her, but there are legal remedies to help her.

BizAttorney :

Did you have any other questions tonight?

BizAttorney :

If not, please leave me feedback so that I can continue to help others.

BizAttorney, Attorney
Category: Legal
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Customer: replied 2 years ago.

I checked with the county Attorney and he said you are wrong. That in Alabama the law was recently changed. You can only file a restraining order agenst a wife or husband.

Customer: replied 2 years ago.
Relist: Inaccurate answer.
The answer I got about Alabama law on restraining order was wrong. I was told you can file an order on anyone that harasses you but I have been told by the county attorney it has to be a wife or housband filling.
Expert:  Phillips Esq. replied 2 years ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.


With all due respect, your "County Attorney" is wrong. Restraining Order CANNOT ONLY be between husband and wife. Restraining Order can and is for anyone related to you who is harassing you. So, it can be for a mother, a son, daughter, brother, sister, etc:




The affected individuals need to go to Court as the previous Expert suggested and complete forms to obtain Restraining Order against the son/brother:




http://www.madisoncountycircuitclerk.org/protection.htm

Also, the Police is wrong. The mother does not have to go through the eviction process to lock out the son because the son is not a Tenant. The mother can change the locks to the house without going to Court. See Code of Alabama Title 35 Chapter 9A Section 35-9A-141:

Section 35-9A-141

Definitions.

Subject to additional definitions contained in subsequent articles of this chapter which apply to specific articles or divisions thereof, and unless the context otherwise requires, in this chapter:

(1) "action" includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined, including an action for possession;

(2) "building and housing codes" include any law, ordinance, or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance of any premises or dwelling unit;

(3) "day" means calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open;

(4) "dwelling unit" means a structure or the part of a structure, including a manufactured home, that is rented as a home, residence, or sleeping place by one or more persons;

(5) "eviction" means a civil action filed as a remedy, where a tenant has lawfully taken possession of a premises and fails or refuses, after the termination of the possessory interest of the tenant, to deliver possession of the premises to anyone lawfully entitled or to his or her agent or attorney;

(6) "good faith" means honesty in fact in the conduct of the transaction concerned;

(7) "landlord" means the owner, lessor, or sublessor of the dwelling unit or the building of which it is a part, and it also means a manager of the premises;

(8) "organization" includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any business entity;

(9) "owner" means one or more persons, jointly or severally, in whom is vested (i) all or part of the legal title to property or (ii) all or part of the beneficial ownership and a right to present use and enjoyment of the premises. The term includes a mortgagee only when in possession;

(10) "person" includes an individual, individuals, or organization;

(11) "premises" means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and facilities held out for the use of tenants generally or whose use is promised by the rental agreement to the tenant;

(12) "rent" means all payments to be made to or for the benefit of the landlord under the rental agreement;

(13) "rental agreement" means all agreements, written or oral, and valid rules and regulations adopted under Section 35-9A-302 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises;

(14) "roomer" means a person occupying a dwelling unit that does not include a toilet, a refrigerator, stove, kitchen sink, and either a bath tub or a shower, all provided by the landlord, and where one or more of these facilities are used in common by occupants in the structure;

(15) "single family residence" means a structure maintained and used as a single dwelling unit. Notwithstanding that a dwelling unit shares one or more walls with another dwelling unit, it is a single family residence if it has direct access to a street or thoroughfare and shares neither heating facilities, hot water equipment, nor any other essential facility or service with any other dwelling unit; and

(16) "tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

Customer: replied 2 years ago.

OK I will give it another try. Thanks for your quick reply. And for the referances.

Expert:  Law Educator, Esq. replied 2 years ago.
The previous expert is correct and it is more likely the county attorney and the police just do not want to be bothered with your case and are blowing you off, which is more common than one would like to believe I am afraid.
Customer: replied 1 year ago.

sorry but I talked with the attorney with the Alabama Atorney General office and he said you were wrong. The law has been changed and you do have to be a wife or husband to file a protection order. And to run an adult child out of the house you do have to handle it like a renter. You need to do your resurch befor you advise someone. Check it out.

Expert:  socrateaser replied 1 year ago.

Hello,

Different contributor here. As someone who takes questions and answers provided here with great seriousness, I'm always concerned when a customer makes an unequivocal statement about the law, because in my experience, most laypersons, attorneys, judges, etc., are frequently wrong on their recitations of law, and only after a considerable amount of litigation occurs, does an accurate analysis and conclusion of law final surface.

So, I decided to do what you said, and "check it out." And, darned if you're not the real expert here, because you're substantially correct in your conclusion.

The current Alabama domestic violence protective order law defines "Plaintiff," as follows (AL Code 30-5-2):

  • PLAINTIFF. For the purposes of this chapter, the term plaintiff is a person in need of protection from domestic violence who is 18 years of age or older, is or has been married, or is emancipated, and has one of the following relationships:
  • a. Related by marriage to the defendant, including a common law marriage.
  • b. Had a former marriage or common law marriage with the defendant.
  • c. Has a child in common with the defendant.
  • d. Has a dating relationship with the defendant. A dating relationship means a recent frequent, intimate association, primarily characterized by the expectation of affectionate or sexual involvement within the last six months. A dating relationship does not include a casual or business relationship.
  • e. Is a current or former household member. A household member is a person maintaining or having maintained a living arrangement with the defendant where he or she is in, or was engaged in, a romantic or sexual relationship.

 

After reviewing the exact text of the law, it's pretty clear that the only way that a child and parent could be in a relationship where one could obtain a domestic violence protective order against the other, would be if they were engaged with each other in a romantic or sexual relationship (incest -- yuck!).

Anyway, I won't delve into the rental issue, because it's pretty obvious you're not at all happy with the answers received here. But, I just wanted to let you know that someone was actually paying attention.

Please let me know if I can be of further assistance. Otherwise, I wish you a Happy Holiday season.

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Customer: replied 1 year ago.

but thanks for finaly looking it up. i do feel bad because, not only did i pay $50 but used the bad info to really chew out my relatives for not acting on what i told them and later find out you told me wrong. but thanks for at last looking it up.

Expert:  socrateaser replied 1 year ago.
Every contributor at this website who answers questions is considered a "user" by the website operator. This means that no one is responsible to anyone else for their answers. I can't control the work of others in the forum. It's enough work for me to research every one of my own answers, before I deliver it to a customer.

Anyway, back to your issue. It seems to me that your sister could give her son seven-day notice to repair all of the damage he has done to the property or quit (click here for form), pursuant to AL Code 35-9A-301(6) and AL Code 35-9A-422, and then assuming that he does not repair all of the specified damage (which he won't likely do), then your sister could commence an unlawful detainer action in county court (click here for complaint form).

I'm providing the various links to the law and forms for review purposes. Frankly, I think it may be emotionally impossible for your sister to do this without a lawyer -- after all, it's her son. Moreover, even with the forms, the intricacies of the unlawful detainer process is considerable, and if your sister makes a procedural error, she will have wasted her time and she will have to start over.

So, for a competent landlord-tenant lawyer referral, see this link.

Happy Holidays.




Customer: replied 1 year ago.


quick reply but little resourch

Customer: replied 1 year ago.


quick answer but no resourch for that reason their answer was wrong. should reimburse my money

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