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JD 1992
JD 1992, Lawyer
Category: Family Law
Satisfied Customers: 33761
Experience:  Began practicing Family Law in 1992
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Procedural question in a family law case: Post divorce

Customer Question

Procedural question in a family law case: Post divorce matter. Restraining/no contact order in place against me issued in Maine (where my ex lives) and I reside in CO, where the domestic case is being conducted. Legal business and communications were handled
by respective attorneys, but now both parties are un able to afford counsel any longer, and both parties are now pro se. I have no idea how to conduct the case (I filed a contempt for failure of ex to pay court ordered child support to me after she moved from
CO to ME, two children left with me in CO, obvious change in circumstances, new CS hearing held, ex has refused to pay CS as ordered. Show cause hearing in about 10 days.) I called the court clerk for guidance, who said I have to file a motion to ask the magistrate
how to properly proceed with court business when both parties are pro se, and there is a restraining order in place, without my violating the restraining/no contact order. The clerk would give no more "advice" other than to tell me where I could locate blank
motion forms online. How do I ask my question of the magistrate in general, and specifically what legal terminology and phrasing is to be used in such a motion? What do I even title the motion? Thank You.
Submitted: 1 year ago.
Category: Family Law
Expert:  JD 1992 replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

Actually, the magistrate isn't supposed to even answer that question.

What exactly are you wanting to do that you aren't allowed to do pursuant to the restraining order?

Customer: replied 1 year ago.
Disclosure requests, disclosure and exhibit exchanges, filings with the court such as witness lists, exhibits, deposition notices, on and on. Scheduling matters, deadline extension requests, etc ALL require contact and sending copies of filings with the court to the other party. Instant RO violation. How do I question her on the stand as the only witness involved without seeing or speaking to her? She has filed a counter contempt as I am supposed to pay for the children travel expenses to spend parenting time with their mother in Maine. She has said if I send her a check to reimburse flights etc, she will have me arrested for violating the order (sending mail to a protected party = violation.) We have our checking accounts set up so we could transfer funds as deposits only to the other party for reimbursements of children's med expenses etc, and she says if I use that method, I will similarly be charged with violating the no contact order. I TRIED to reimburse her, but she refuses my payment as a violation of the RO and at the same time files a contempt for my not paying child travel expenses. That's how she operates. We cannot be in the courtroom at the same time. There is no "must stay 100'" away from other party in the order, so the police (yes, she calls them fairly regularly) explained that I am restrained from even being in visual sight of her, as I could make rude hand gestures, faces, etc. If not from the magistrate, who is to set the "rules" for conducting the case while a RO/no contact order is in place so I am not found guilty of violating it? If the magistrate does not have the discretion to allow contact while conducting court business, who does? Super high conflict case, she will press even the most innocent and minor transgression and relentlessly seek to have me arrested. There is no possibility of her agreeing to allow contact to conduct court business. I believe she went pro se (about two weeks ago) specifically to cause this complication and hope I slip up either through violating the RO, or missing some deadline or other in the case for fear of violating the RO. She regularly goes from being represented to pro se as a tactical maneuver. This is just the most recent example, but with the RO in place, I simply don't know what to do. The clerk instructed me to file a "motion," with no explanation of what the motion should contain, or what I should be asking for. Thanks, Andy
Expert:  JD 1992 replied 1 year ago.

Questioning her on the stand wouldn't be a violation since it is being done under the supervision of the court.

Does the order specifically state that you aren't to be in the courtroom at the same time as her? If not, who told you that?

Customer: replied 1 year ago.
No, the order does not specify anything about exceptions nor specific prohibitions, be it related to court business, informing the other of an emergency with the children, or anything else I PLEADED be included in the RO. The Police told me no contact means no contact, including visual contact. If I violate the RO, they have no choice but to arrest me, then I can explain extenuating circumstances etc to the judge at a later time. The police explained they have no discretion. Violate the RO, go to jail, tell your story to the judge later.
Expert:  JD 1992 replied 1 year ago.

I've never seen an injunction that can prevent you for exercising your rights through the court and have very serious doubts that it would be "legal" if stand up to a challenge if indeed the order was interpreted as that.

However, what I'd suggest is that even though funds are limited you hire a lawyer just to file the motion and have the court set the ground rules under which you can proceed. The lawyer can explain to the court that he is only hired for this purpose and will then withdraw from the case.

There are a variety of ways to file this but the one that makes the most sense is to file a Motion to Clarify and Amend Restraining Order since that will allow you to get the judge to put specifics into the order and avoid any issues with the police. While you can do it yourself if the police do take a hard line stance then when you have her served and who up at the courthouse they can arrest you and you will then have to go through all of that hassle.

While the clerk may have told you that the judge will instruct you they actually are not allowed to do so. What your lawyer will do is offer suggestions in the motion and then the judge can issue his orders as he sees fit.

Customer: replied 1 year ago.
OK, i understand the general concept, except the order was issued by a judge in Maine, and the magistrate conducting the case is in Colorado. Does the CO magistrate have the discretion/authority to clarify and modify a RO issued by a judge in another state?
Expert:  JD 1992 replied 1 year ago.

Was the order from CO registered as a foreign judgment in CO?

Customer: replied 1 year ago.
Not that I know of, but I did file a motion while pro se asking the CO judge to "dismiss" or "invalidate" the RO from Maine using the argument it is a foreign order and should not be valid in CO. My motion was denied, but I don't know if anything was "registered" as a foreign order. From the denial of my motion, I would say not.
Expert:  JD 1992 replied 1 year ago.

They shouldn't be able to find you in contempt of a Maine order for actions that occur in CO. However, she can file back in Maine for a violation that occurs in CO so it could still be enforced. Actually what she should have done was "domesticate the judgment" in CO and then ask for it to be enforced there.

From your standpoint you could ask the court to issue new orders, to issue specific instructions for this proceeding, etc. I've never actually seen or heard of a case with these facts so it's definitely strange and is an even stronger reason to get a lawyer for just this part. The judge can lay down specific ground rules and issue specific orders for how things are to be done in this case without specifically recognizing the order from the other court.

I am going to be offline for a little while but if you have additional questions please post them and I'll get back to them as soon as I'm back online.

If your question has been answered completely then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

But, as I said, please feel free to ask any follow up questions in this thread.

Customer: replied 1 year ago.
OK, have a good night, and thank you. Andy
Expert:  JD 1992 replied 1 year ago.

You're very welcome. I will be back later though. Also, once you issue your Positive Rating the question locks open and will no longer time out so you can come back to it in the future if you think of a follow up, which happens pretty often.