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My son is 8-years old. His father and I were never married…

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My son is 8-years old...
My son is 8-years old. His father and I were never married and I am the primary, legal custodian. Last summer, my son reported to his therapist and myself that his father threatened to kill him and mom. This was after his stepmother was investigated for hitting my son. We were able to obtain a temporary protection order for most of the summer because his father failed to show up for the hearings because he went on vacation rather than appear in court. Finally after returning from a month long trip, we made it to court and the judge dismissed the temporary order because "the threat was heresay from the child'. The temporary visitation of every other week, Wednesday through Monday after school was reinstated. Since then his stepmother hit him on the face...the ER and two social workers reported this as physical abuse. Nothing has been done so far. His attorney has managed to keep him out of court because he does not pay the temporary child maintenance (just half medical, school expenses, extracurricular acivities) and there is still no child support set. At this time, he has 13+ contempt charges in child support court and my son has continued to report abuse from the stepmother and emotional/mental abuse from his father. Because I took out the PO on behalf of my son, his father has sued me for sole custody stating I am unfit. I took a parental assessment and psychological exam (father and stepmother are supposed to as well) and my son took a psychological exam...his therapist and the exam showed my son is not lying and there is evidence of physical and emotional trauma. My son was ordered an ad litem, who is showing extreme bias toward the father. The father took me to court to make me allow my son to skip 6 days of school for a ski trip. The ad litem told the judge the trip would be good for my son and she had spoken with my son's teacher who gave permission to go until I "confronted" the teacher and now the teacher would not return her calls. I had a meeting with my son's teacher and she said it was against their attendance policy and TN truancy laws and she never gave permission. My son has already missed 12 days due to a broken arm that required surgery and a week due to a bronchial infection. The judge ruled in my favor and was extremely ticked off that this was actually brought into court in the first place and this would be in no way in the best interest of the child. My son had visitation starting the afternoon of the hearing until the father left Saturday for the ski trip. Before this went to court, the ad litem called me to say she thought the trip would be good for my son and I was being "a vindicative bitch" because the father is not paying child support. At the exchange on Saturday, the father was visibly angry and my son was in tears when he got in the car. He reported to his therapist that his dad "came in to the den where I was playing Wii and was really mad and said I'm going to kill you". My son is also keepng a journal and his therapist got my son's permission to show me what he wrote and what he said. His therapist believes his father is capable of physical harm (the ad litem actually wrote my attorney that he had agreed to anger management classes if my son went on the ski trip). My attorney wrote the ad litem a letter with a copy of my son's journal page (the same page that the father found my son writing and ripped it up - my son had to re-create what had been written to the best of his ability) which showed the threat to kill him and about being physically hit by the stepmother...my attorney wrote that the threat should be taken seriously, reported and investgated. The letter was faxed to the ad litem on the 23rd and it is the 29th today. The ad litem never contacted my son, myself, the two therapists involved. My son is terrified because his father is supposed to return today and my son is supposed to go to his father's for visitation Wednesday. I have contacted my attorney with multiple recording's and papers begging for something to be done before Wednesday. Can anything be done to protect my son? Are we at the mercy of an ad litem that is obviously biased? The ad litem has not reported the threat and has the proof that the father has hacked into my son's phone - it is password XXXXX - we have phone company proof that the phone has been used while my son was in school or extremely late at night to numbers my son has never called. What can I do to protect my son? My attorney has told me she cannot tell me to go against a court order for visitation...so, does this mean I can't protect him and he will have to go because the ad litem is not doing her job? Please, I just want answers about how the law will protect my son and me. What can I do? I'm scared for him and for me.
Desparate mom in TN
Submitted: 6 years ago.Category: Family Law
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2/27/2012
Family Lawyer: Ely, Counselor at Law replied 6 years ago
Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 103,583
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow ups and my replies because I am typing out my answer, or taking a quick break.

I am sorry for your situation. Please allow me to answer your questions in turn.

Can anything be done to protect my son?

See below.

Are we at the mercy of an ad litem that is obviously biased

Yes and no. If you feel that the Ad Litem is particularly biased, you may motion to remove him and have someone else appointed. However, know that most such motions are denied. Courts do not like removing Ad Litems and the rebuttable presumption is that their reports are genuine. You have to have clear and convincing proof of bias, and not just a record of having the Ad Litem go against you and in favor of the other parent. So you may attempt it, but barring actual evidence that is very clear of bias, you may be denied. Also know that while and Ad Litem's report(s) to the Court is valued, the Court can and sometimes does rule against the Ad Litem's recommendations.

The ad litem has not reported the threat and has the proof that the father has hacked into my son's phone - it is password XXXXX - we have phone company proof that the phone has been used while my son was in school or extremely late at night to numbers my son has never called.

If you have proof, then you may file a police report. Hacking is illegal in TN under Tenn. Code Ann. § 39-14-601/2. Therefore, you can file a criminal complaint and he may be charged if the telephone is not in his name. Make sure to run this by your attorney first - do not do anything without your counsel knowing, of course.

What can I do to protect my son? My attorney has told me she cannot tell me to go against a court order for visitation...so, does this mean I can't protect him and he will have to go because the ad litem is not doing her job? Please, I just want answers about how the law will protect my son and me. What can I do? I'm scared for him and for me.

You have two options, essentially.

1) File an emergency (ex parte, to be heard on the same day as they are filed) motion to request that the standard custody order be stayed until these allegations are cleared up (and then revisit the matter once he is served). The Court may or may not allow this.

2) Simply refuse visitation but risk him filing a contempt motion - you should have clear and convincing evidence that your withholding of visitation was reasonable and necessary.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 103,583
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Customer reply replied 6 years ago

This leaves more questions - it seems the law protects the adults and the child is left with nothing to hope for...if that makes sense.

 

The child is begging for someone to listen and believe him. He has reported a threat made against his life, now for the second time and his ad litem has not bothered to follow through. I don't understand why an attorney would not bother even calling her client after such a threat...much less not contact his therapist, etc. She got in front of the judge and lied about what the teacher had told her. This is not about her taking sides...it is about a defenseless 8-year old who constantly asks why no one cares what happens to him. So, her not reporting or investigating her client's claim that his father said he would kill him means nothing to the courts?

 

His father did not like what he wrote in his journal and through away the first one. Then when his father found the second journal, he didn't like that either and ripped it up and threw it away. This was reported to the ad litem as well and she has yet to address that. I find it hard to believe she is looking out for the best interest of the child. By the way, my parenting assessment and psych evaluation came back great. His father has already admitted to anger problems.

 

I feel helpless and I feel like no one will listen to an 8-year old. The father has been diagnosed with narcisstic personalty disorder and the stepmother has refused to comply wth any of the court orders - parenting assessment and psych eval. I have called my attorney to find out why we cannot have an emergency hearing on the visitation...she is turning the father over to the DA for the hacking.

 

I guess I just wanted to hear that there is something more I can do instead of sending my son back into a really scary situation because he cannot protect himself. I pick up the pieces after every visitation and I'm really scared one of these times I won't be able to pick up the pieces. This has been going on since 2008 with no resolution and abuse that is considered unimportant. Will the courts ever listen to my son? Or has his father figured out that as long as it is his word against his son's, he can get away with anything? Thank you.

Family Lawyer: Ely, Counselor at Law replied 6 years ago
Hello,

Well, there is something you can do, but the court has the final decision:

1) File an emergency (ex parte, to be heard on the same day as they are filed) motion to request that the standard custody order be stayed until these allegations are cleared up (and then revisit the matter once he is served). The Court may or may not allow this.

2) Simply refuse visitation but risk him filing a contempt motion - you should have clear and convincing evidence that your withholding of visitation was reasonable and necessary.

Will the courts ever listen to my son?

The Judge decides this, based on his call as to whether or not the son is mature enough to testify.

While the legal system tries to be inclusive of every possibility, sometimes people are morally wronged but have limited avenues to seek relief. Please understand that this is not the expert’s fault. I am sure that you prefer that I tell you the truth rather than tell you what you want to hear. Please do not “shoot the messenger.” This medium of communication may not always effectively express emotion but do know that I understand that this may not be easy to hear and I empathize.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

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