After filing the petition for a restraining order on September 2nd, 2004, a hearing was scheduled for the following week on September 8th. PEW was appropriately served her notice and showed up with her legal representation. After lengthy discussion with my attorney, he was confident that I could handle this on my own and effectively told me to stick to the facts as I had presented them in the petition and do not deviate. Explain the story, provide your evidence (police reports and calls) and it should be granted.
Now, many attorneys do their “pro bono” work as may be required by their firms during restraining order issues. I was approached by one and decided to go ahead and take it. With a few hours to go until it was our turn, I filled him in on all of the details and he agreed that it was quite likely that I would get the restraining order.
I requested the following:
- Restrain Defendant from abusing, threatening, harassing, or stalking Plaintiff and/or minor children in any place where Plaintiff may be found.
- Evict/exclude Defendant from Plaintiff’s residence and prohibit Defendant from attempting to enter any temporary or permanent residence of Plaintiff.
- Award Plaintiff temporary custody of the minor children and place the following restrictions on contact between the Defendant and the children: “Any agreed-upon visitation requires an exchange no closer than the driveway of the marital residence with no entry into the home.”
- Prohibit Defendant from having any contact with Plaintiff and/or minor children either in person, by telephone, or in writing, personally or through third persons, including but not limited to any contact at school, business, or place of employment, except as the court may find necessary with respect to partial custody and/or visitation with the minor children.
- Prohibit Defendant from having any contact with the Plaintiff’s relatives and Plaintiff’s children listed in this petition, except as the court may find necessary with respect to partial custody and/or visitation with the minor children.
- Order Defendant to temporarily turn over weapons to the sheriff of this county and prohibit Defendant from transferring, acquiring, or possessing any such weapons for the duration of the order.
- Order Defendant to pay temporary support for Plaintiff and/or minor children, including medical support and payment of the rent or mortgage on the residence.
- Direct Defendant to pay Plaintiff for the reasonable financial losses suffered as a result of the abuse, to be determined at hearing.
- Order Defendant to pay the costs of this action, including filing and service fees.
- Order Defendant to pay Plaintiff’s reasonable attorney’s fees.
- Grant such relief as the court deems appropriate.
- Order the police or other law enforcement agency to serve Defendant with a copy of this petition, any order issued and the order for hearing. The petitioner will inform the designated authority of any addresses, other than the Defendant’s residence, where Defendant can be served.
So, my pro bono attorney meets with the other side to try to get the lay of the land and see what he can make happen. When he returns after a lengthy discussion, he informs me that the other side is willing to accept the petition with one exception – that the children be excluded from the restraint.
When I explain to him that the greater portion of my fear is that the children could ultimately be harmed by her increasingly escalating behaviors, the attorney explains that I have a solid case on the firearms issue. She will be found guilty and the court would very likely impose all of that which I have asked for, except the temporary custody of the children. I allow myself to be talked into it. We avoid the hearing by allowing everything relevant to my own protection to proceed, most importantly, her immediate turning-over of the firearms to the Sheriff’s department. And again, I get another lesson in the mother-favoritism in family court.
Another hindsight lesson for anyone in a similar spot is here. While I will always suggest that you default to listening to the attorney’s advice, I will now suggest that you follow your gut… follow your instincts… do a risk/reward analysis. I believe I made a mistake in listening to this attorney’s advice as I had nothing to lose by going to a hearing. In that situation, where there is truly no downside to proceeding – PROCEED and see if you can get all of the relief you’ve asked for. I wasn’t going to jail. I wasn’t going to be sanctioned. I had the complete upper-hand. And I gave away a potentially strong opportunity to gain primary, if not sole, custody of the children because of PEW’s criminal behavior. I let the “expert” talk me into this because of the mantra “always listen to your attorney.” Well, folks… I’m hear to tell you that attorneys can be wrong. Attorneys make mistakes. Attorneys can give bad advice. Assess each situation on its own merits and if your instincts are telling you to follow through with the hearing and there is literally no downside to trying to push through and get what you asked for – JUST DO IT!
I thought that between winning the hearing over the schooling issue followed so closely by these events and subsequent restraining order being accepted by her without a fight/defense, I had a couple of major tools needed to protect myself and gain primary custody of the children. I would be able to protect them from her madness. My confidence level was quite high.
Still, following the advice of the pro bono attorney and not following through on the hearing, even though I still get the PFA, was probably another of several big blunders on my part. My high confidence level would soon be shattered as we go through the custody evaluation and panic begins to take hold.
The restraining order was entered for a duration of 18-months. I received exclusive possession of the marital home (though she wasn’t required to make any contributions to the mortgage or upkeep, which pretty much was the same as when we were married). She was required to turn over the stolen firearms to the Sheriff’s office.
In an early example of PEW’s penchant for willful disregard of court orders, I received a call from her 2-weeks after this hearing. She explained to me that her neighbors told her that a couple of Sheriff’s officers were looking for her at her place earlier in the day and if I had anything to do with it. I told her that I did not.
It turns out, she hadn’t turned over the firearms to the Sheriff’s department and a bench warrant was issued for her arrest. In keeping with her ability to get out of certain trouble – she turned over the firearms shortly thereafter. Still, she had to go before the court and explain the delay in compliance. I wasn’t there for it, but I’m sure she turned on the crying faucet, made some lame excuse, and was not sanctioned for her willful disobedience of the court’s orders. She is contempt of court, she is already in violation of the PFA by continuing to hold the firearms – and NOTHING is done. No sanctions. No arrest. No penalty whatsoever. 4-years later, I’m no longer surprised when these things happen to me or anyone else.