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LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 10284
Experience:  Experienced Family Law Attorney
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I am the mother to a 15 yr old son. We've been back and

Customer Question

I am the mother to a 15 yr old son. We've been back and forth in custody battles for 10 years. I gave my ex husband physical primary custody in 2006 under the false pretense it would only be temporary. Well My sons father met and married an older woman who has totally alienated me from my son & my once great friend, my ex. We have a court order that my sons been begging me to change. I tried 4 times and lost every time bc I had no $ for an atty. Since 2007 my son has endured the wrath of this overbearing sm. It's in our court order that if the parent with custody BE w- our child. For the last 5 mths my ex has been spending every week at their beach house leaving my son home alone w- his step monster. My son called me last night crying wanting to just talk to his mom. The SM put him on speaker wasted out of her mind and told my 15 yr old to "man up" saying he was not going to talk to me. She was SCREAMING profanities at him and me. I never spoke to him. This morning at 6:18 my 15 yr old borrowed a friends phone on the bus and called me crying. His SM called him a little wussy for "needing him mommy". My son picked up his phone to call me and apologize. The SM GRABBED his phone, went and got a hammer and smashed it into hundreds of pieces then threw it at him and made him sleep out in her back yard!!! My ex was as usual no where near NC. My son called me again from school today again crying saying"Mom you've GOT to get me out of there. I am getting my son on Friday. He is ADAMANT about getting away from the alcoholism, physical, mental & emotional abuse. I've handled this the best way I know how, but he is getting out of that horrible toxic environment. Can he and I go to the courthouse and file an emergency motion and let HIM finally tell the judge he can't take it anymore. I think I can go in pro Se as I've done before. However, will I have to have an atty present and what are his chances to live safely just by talking to the judge. And how do I get on the docket asap.. This is basically killing my son & me. We are in Mecklenburg county and I just need some detailed guidance or advice. Thank you
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

I am very sorry to hear this;

The ex parte procedure is authorized by statute if one is at significant harm of psychological abuse - that statute states:

(2) A temporary order for custody ex parte and prior to service of process and notice shall not be entered unless the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse.

(3) If the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse, upon request of the aggrieved party, the court shall consider and may order the other party to (i) stay away from a minor child, or (ii) return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis, if the court finds that the order is in the best interest of the minor child and is necessary for the safety of the minor child.

and is located here:

While one can proceed as a self-represented litigant, if at all possible it is best to hire an attorney, because the ex parte process is more complicated, and any mistake will delay the issue going before a judge- which defeats the purpose of the ex parte.

If there is threat of physical harm or emotional abuse, here is the paperwork for a restraining order:

An adult may file on behalf of a minor child; the court house typically has advocates to assist with that.

For example of what is considered domestic violence please see here

Expert:  LegalGems replied 1 year ago.

Additionally, child custody cases do allow the child to express their interests- either in chambers (in private ) with the judge, or through a therapist (custody evaluation). The court will consider the child's wishes so long as they are based on what is in the child's best interests; but if a child is being required to spend time with an abusive step parent when the parent is not there, especially for extended periods, most courts would allow for a change of custody if the child so wishes and the other parent is fit and able to care for the child.

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