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i currently have custody of my dauhter and her father has visitations…

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i currently have custody of...
i currently have custody of my dauhter and her father has visitations through court. He got a restraining order on me based on false allegations. He accused me of punching him on the face when he came down to pick up our daughter. This same day he went to municipal court to press charges on simple assault on me but no probable cause was found. So he went down to family court and was able to get the restraining for assault and harrassment. He said i called him a bitch,lose,and sperm donor. I did text him prior to his arrival at my house and i did say he was a loser but his girlfriend is behind all this and what i said was that she got the loser i didn't want. Please help
Submitted: 8 years ago.Category: Family Law
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6/14/2010
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago
Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27,690
Experience: 25 years experience as practicing attorney
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Dear JACUSTOMER - The best advice I can offer is to get an attorney and not talk about this to anyone. If you cannot afford an attorney you should ask the court to appoint one. If there are any independent witnesses who can corroborate what you say didn't happen then you need to have them testify on your behalf. Otherwise it is the father's word against yours as to what occurred.

 

Many times, if the court fears possible violence between the parties they will issue a restraining order to keep them apart. This would have no effect on the custody of your child but may affect how the transfer is made for visitation. The less you say or text the better off you will be.

 

Dave Kennett

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Customer reply replied 8 years ago
i meant to say no probable cause was found instead of was found. i was told by someone else custody would be affected so i don"t want to loose that. there are no witness on my side but his girlfriend was there and she will be at his defence. if the restraining order is made final i will end up with a criminal record and this is no good for me. i don't want the father to see our child because he doesn't take his visitation seriousely. In the past he has not picked up our daughter on few occassions and bringing his girlfriend when she doesn't like me is unacceptable
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

If there is no allegation of child abuse I can't see how custody would be affected unless this court hearing involves custody as well as restraining order. Obviously if he is asking for custody that would be a different issue from the restraining order. The restraining order is simply an issue between you and your ex and not your child.

 

Dave

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Customer reply replied 8 years ago
the restraining order does have the docket # XXXXX our custody order so i am sure he wants custody of our daughter. He was mad when custody was granted to me . I know he wants custody because he hates paying his childsupport, which is also through court. His girlfriend has paid his attorny in the past and i know he will have an attorney today so what r my chances with someone who knows the law and will make this fool look like a responsible and caring father?
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

The docket number is XXXXX for all filings regarding the case so you have to look at what the stated purpose of the hearing is to know whether custody is an issue in this hearing. The judge is only going to hear the issue stated and not things like custody, visitation and support.

 

Dave

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Customer reply replied 8 years ago
i did explained before that the restraining order is charging me with assault and harrassment charges. Is texting him loser once harrassment? We will be see a family court judge i believe visitation will be address since based on the restraining order it has stop. i just read that the answers u give me may not be truthfull so am i wasting time with u?
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

I have no idea what you mean by my answers not being "truthful". I have practiced law for nearly 30 years and my answers are based on my experience and knowledge of the law. I can never predict what any court will do in a given situation so I make no promises as to outcome. Obviously I have not read the pleadings in your case so I can only base my answers on the information you have provided. Calling someone a loser is not, by itself harassment.

 

Dave

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Customer reply replied 8 years ago

what do u mean by itself harrassment? is harrassment how the other person feels and view the actions or comments? Can i request to cancel the parenting time based on the fact that the father does not comply with his court order. He has failed to pick up our daughter on a few occassions and our daughter cries and yells when he picks her up. Also i don't want him bringing his girlfriend over when he picks up our daughter

 

Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

What I mean is that just calling someone a "loser" without something else involved such as a threat of violence. As far as the visitation or parenting time, you have a right to request a modification of the court order. Just because he doesn't exercise his visitation according to schedule does not mean the court will cancel it altogether but you may be able to get a modification. You will have to file a separate motion to get the issue of visitation heard if it is not part of the upcoming hearing.

 

Dave

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Customer reply replied 8 years ago

my daughter's father has a temporary restraining order on me. I have full custody of our daughter and he has visitation rights through court. My question is , if the restraining order is final is he able to see his daughter? What may be other alternatives in his visitation order?

Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

The restraining order would only be against you in relation to the father. It would not have anything to do with you having custody of the child or the father exercising his visitation. You may have to make some type of arrangements for him to pick up the child for his visitation since you and he could not have contact, assuming the restraining order continues.

 

You cannot confuse the restraining order that pertains to you and the father with the issue of custody of your child since the restraining order does not apply to your child.

 

Dave

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Customer reply replied 8 years ago
so if the restraining order is made final and i can't have any contact with him, what other ways can he see his daughter since she is only 3yrs old . Also can i change days of visitation?
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

You would have to file a motion for a change of visitation. This is a separate issue from the restraining order so it needs to be heard in a separate motion. He would be able to see his daughter for visitation since the court would order some type of transfer that would keep you and the father apart. I have no idea exactly what would be possible but sometimes it will involve another family member handling the transfer. I can't predict all the possible outcomes of a case as I can only speak in general as to how the system works.

 

Dave

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Customer reply replied 8 years ago

i don't have any family member that can do the transfer and he probably neither what can be done in this case?

 

Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

I cannot say what will be ordered by the court but they are not going to deny visitation because of the restraining order. I just can't answer all questions that are not related to legal issues. Most of this involves logistics and not some legal question. You will need to ask the court for guidance.

 

Dave

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Customer reply replied 8 years ago

can i request his girlfriend not to come with him , if she is the one causing problems

Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

Absolutely you can request that the girlfriend not be around your child during his visits. He is not married so I see no reason why the girlfriend has any legal right to be around your child.

 

Dave

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Customer reply replied 8 years ago
they are not married but have a child and live together and his visitation is the weekends so don't really have a choice if
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

I doubt the court is going to order that she leave during the visits but it never hurts to ask.

 

Dave

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Customer reply replied 8 years ago
i would like to enter a motion to change da visitation but i'm afraid because i entered a motion about 2 months ago and the judge will probably think i'm crazy what do you suggest
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

If you just filed a motion two months ago I would not file another one this soon. The court is going to consider this as a frivolous motion.

 

I really believe I have answered your original question and several others so I really don't know what else I can offer in this situation. I am not able to predict what a court will do in a specific case so most of this is just speculation.

 

I am willing to try to help you but I have spent a lot of time on your question and you have not accepted so I'm not certain if you are satisfied or not with the service I have provided. I can only do so much from this website.

 

Dave

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Customer reply replied 8 years ago
i'm not asking you to predict what will be the outcome but i need advice because i this is new to me and i don't know how it will affect me ....so i guess i will have to seek legal advice.......thank you for your time
Family Lawyer: Dave Kennett, Lawyer replied 8 years ago

Yes, I can only offer general information based on my experience. I don't know your specific court or judge and cannot say what he may or may not do in your case. I also do not have access to your files. The first thing you need to do is to deal with the restraining order hearing and see what happens there. Then you can base your next action on the outcome of the hearing at hand.

 

Dave

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