Does my son have to go to his mom's if he has a TRO against her BF ?
February 3, 2010 6:04 AM Subscribe
Does my son have to go to his mom's if he has a restraining order against her boyfriend ?
This is in Wisconsin. My son is 15. I have an attorney, and am waiting to hear back from them on this and other matters related to our hearing on a permanent injunction for my son. Mostly, I am asking so that I can benefit from learning how to find these answers myself, and to hear others experience, and weigh that against what my attorney tells me.
The short version of the story is that this guy is a small time drug dealer with a history of petty crimes. He grabbed my son during an argument last week, and it was serious enough that my son ran in socks and a t shirt and several blocks to the police station in freezing temps. The boyfriend was arrested and made bail that night. My son was turned over to me by the police. This is not the first time my son went to the police after an argument with this guy, but this is the first time it has become physical.
I got a TRO for my son, and the BF has been served. A hearing is scheduled for later this week.
My son's mother lives with her boyfriend at his house - he owns it, is on the title (and is behind on his taxes). She has no claim to the house as far as I can tell, and does not pay rent.
Mom is supposed to have placement tomorrow night under the current court order. My son does not want to go. I don't think its a good idea either.
I spoke to a cop who said that a person with a (T)RO cannot force the removal of the enjoined party from their house - i.e. My son cannot go to the boyfriends house, because that would force the boyfriend out, regardless of where his mom lived. She would have to make other arrangements and absent those arrangements, placement could not take place.
This makes some sense to me, but I am unable to verify it after looking through the resources I could find. So, my question for you - Does my son have to go to his mom's if he has a restraining order against her boyfriend ?
A bonus question : Could refusing to honor a court order using this rationale could be construed as contemptuous ?
Again, I know that these are hard legal questions to answer on the internet, and I will be bringing them up with my attorney. I am interested in some perspective or other things to consider. I want to make sure I think of everything.
This is in Wisconsin. My son is 15. I have an attorney, and am waiting to hear back from them on this and other matters related to our hearing on a permanent injunction for my son. Mostly, I am asking so that I can benefit from learning how to find these answers myself, and to hear others experience, and weigh that against what my attorney tells me.
The short version of the story is that this guy is a small time drug dealer with a history of petty crimes. He grabbed my son during an argument last week, and it was serious enough that my son ran in socks and a t shirt and several blocks to the police station in freezing temps. The boyfriend was arrested and made bail that night. My son was turned over to me by the police. This is not the first time my son went to the police after an argument with this guy, but this is the first time it has become physical.
I got a TRO for my son, and the BF has been served. A hearing is scheduled for later this week.
My son's mother lives with her boyfriend at his house - he owns it, is on the title (and is behind on his taxes). She has no claim to the house as far as I can tell, and does not pay rent.
Mom is supposed to have placement tomorrow night under the current court order. My son does not want to go. I don't think its a good idea either.
I spoke to a cop who said that a person with a (T)RO cannot force the removal of the enjoined party from their house - i.e. My son cannot go to the boyfriends house, because that would force the boyfriend out, regardless of where his mom lived. She would have to make other arrangements and absent those arrangements, placement could not take place.
This makes some sense to me, but I am unable to verify it after looking through the resources I could find. So, my question for you - Does my son have to go to his mom's if he has a restraining order against her boyfriend ?
A bonus question : Could refusing to honor a court order using this rationale could be construed as contemptuous ?
Again, I know that these are hard legal questions to answer on the internet, and I will be bringing them up with my attorney. I am interested in some perspective or other things to consider. I want to make sure I think of everything.
The BF will have to vacate the premises even though he owns it. You should be wary of violating a court order, but so should the BF. This is not legal advice, just practical advice. Push your lawyer for an answer.
posted by caddis at 6:22 AM on February 3, 2010
posted by caddis at 6:22 AM on February 3, 2010
Ex-UK family lawyer here. If this were the UK and you were my client, I'd say that under no circumstances should your son go to his mother's if she is at her boyfriend's house. And if she makes arrangements to be elsewhere so your son can visit, unless she can satisfy you that the boyfriend will be nowhere near, then again I think you would have reasonable grounds for refusing to allow him t go. The welfare of the child is the court's paramount concern. In the UK, no reasonable judge would consider you to be in contempt of court in such extenuating circumstances.
Of course, this is NLA, IANYL, I know nothing about the law in Wisconsin, but as an experienced family lawyer, I would be surprised if a court in your jurisdiction would expect you to let you son be put in a situation which might be dangerous for him.
posted by essexjan at 6:31 AM on February 3, 2010
Of course, this is NLA, IANYL, I know nothing about the law in Wisconsin, but as an experienced family lawyer, I would be surprised if a court in your jurisdiction would expect you to let you son be put in a situation which might be dangerous for him.
posted by essexjan at 6:31 AM on February 3, 2010
it's the mom's responsibility to provide a place for your son during his visit. that means the boyfriend has to go. if he refuses to leave during the visit, she can't take him there. if he does go, that the bf shows up, he sould call 911 immediately.
whether you get cited for witholding visitation is a hard question without knowing the nuances of your case. if you've been cited with this in the past, you will most likely be cited again. if this is your first time, you probably won't have a problem--but it really depends on the case.
good luck. i'm not a lawyer, just someone who's been through the visitation/order of protection process.
posted by lester at 6:40 AM on February 3, 2010
whether you get cited for witholding visitation is a hard question without knowing the nuances of your case. if you've been cited with this in the past, you will most likely be cited again. if this is your first time, you probably won't have a problem--but it really depends on the case.
good luck. i'm not a lawyer, just someone who's been through the visitation/order of protection process.
posted by lester at 6:40 AM on February 3, 2010
IANAL. At 15, your son probably has some legal autonomy in choosing whether to go to his mother's (how close is he to 16?). I would encourage you to speak to your lawyer about the specific legalities, but in most jurisdictions I don't think he, or you, would be penalized for simply refusing to go.
posted by amyms at 6:43 AM on February 3, 2010
posted by amyms at 6:43 AM on February 3, 2010
oh, and for some unsolicited advice: concentrate on what the bf did to your son. the fact that he's not paying taxes or a petty criminal is mostly hearsay, and won't be considered in court. the fact that he laid hands on your son is a big deal. concentrate on that.
posted by lester at 6:46 AM on February 3, 2010 [4 favorites]
posted by lester at 6:46 AM on February 3, 2010 [4 favorites]
I spoke to a cop who said that a person with a (T)RO cannot force the removal of the enjoined party from their house - i.e. My son cannot go to the boyfriends house, because that would force the boyfriend out, regardless of where his mom lived.
In my past work with domestic violence survivors, I've found this to be true. In fact, clients of mine were found guilty of breaking their TROs for being the one to initiate contact prohibited by the order (ie, going to the abuser's house, or seeking him out at work or elsewhere). If it were me, I most certainly would not send my son over there without hearing from my lawyer first. Is there perhaps an office within your local police department, courthouse, or advocacy group you could contact as well? I'd also consider contacting the office you spoke with to see if you can get more info.
And maybe it's time for you to have full custody, if the mother cannot or will not provide a safe place for your son to live?
posted by runningwithscissors at 7:00 AM on February 3, 2010 [2 favorites]
In my past work with domestic violence survivors, I've found this to be true. In fact, clients of mine were found guilty of breaking their TROs for being the one to initiate contact prohibited by the order (ie, going to the abuser's house, or seeking him out at work or elsewhere). If it were me, I most certainly would not send my son over there without hearing from my lawyer first. Is there perhaps an office within your local police department, courthouse, or advocacy group you could contact as well? I'd also consider contacting the office you spoke with to see if you can get more info.
And maybe it's time for you to have full custody, if the mother cannot or will not provide a safe place for your son to live?
posted by runningwithscissors at 7:00 AM on February 3, 2010 [2 favorites]
In a similar situation in Iowa, the children were not allowed to visit the mother unless and until she threw out the boyfriend (she owned the house in that case). The mother refused, and so had no contact with her children for ... well, it was a long time.
I have no idea what the custodial parent had to do w/r/t enforcement and not getting held in contempt ... I imagine you go to the judge with the TRO and the visitation agreement and say "problem!"
posted by Eyebrows McGee at 7:08 AM on February 3, 2010
I have no idea what the custodial parent had to do w/r/t enforcement and not getting held in contempt ... I imagine you go to the judge with the TRO and the visitation agreement and say "problem!"
posted by Eyebrows McGee at 7:08 AM on February 3, 2010
I currently work with families that have orders of protection in place, and I can tell you: Thank goodness you have a lawyer. I hope he or she works really hard and in your son's best interest. Where I work, the rules vary by county. There seem to be no guarantees for anyone.
posted by psylosyren at 7:38 AM on February 3, 2010
posted by psylosyren at 7:38 AM on February 3, 2010
Also, depending on how you feel about your son being around his mother/her bf in general, if you have evidence of the drug dealing, you might want to consider making an anonymous tip to the cops.
posted by Elminster24 at 10:55 AM on February 3, 2010
posted by Elminster24 at 10:55 AM on February 3, 2010
Play hardball. Refuse to let your son go over there (but offer her visitation at a neutral location). If your ex doesn't like it, she can take you to court, and you can show the police report from your son's assault.
This is not legal advice. This is just ... well, I see this plenty. People withhold visitation for all sorts of bogus reasons (mold in the bathroom, "dangerous" dog, etc.). They're normal people just looking for some leverage and build tiny issues into mountain ranges. You actually have a damned good reason.
posted by dhartung at 5:34 PM on February 3, 2010 [1 favorite]
This is not legal advice. This is just ... well, I see this plenty. People withhold visitation for all sorts of bogus reasons (mold in the bathroom, "dangerous" dog, etc.). They're normal people just looking for some leverage and build tiny issues into mountain ranges. You actually have a damned good reason.
posted by dhartung at 5:34 PM on February 3, 2010 [1 favorite]
Your son can say to his Mom, "How are you going to handle this?" and if she says the BF will be there, can your son go stay w/ a friend? IANAL, but, like others, a parent who's been through messy visitation, spouse and TRO issues. Your son is lucky to have you. This is unbearably difficult, and I'm sorry the 2 of you have to go through this. Good luck.
posted by theora55 at 2:40 PM on February 4, 2010
posted by theora55 at 2:40 PM on February 4, 2010
Mod note: This is a followup from the asker.
We just got back from court - we got a 4 year injunction (restraining order) against the boyfriend.posted by cortex (staff) at 10:36 AM on February 5, 2010 [1 favorite]
I wish I could share details of the hearing today. I owe the guy my lawyer's fee; he made my case better than I did. At one point, I thought he was gonna come across the table at me; he was that belligerent.
My lawyer asked the judge today what to do about placement in this case. The judge agreed that it is a murky issue, but that the minor can go to placement at his mother's house so long as the boyfriend agrees to vacate. However, he cannot be compelled to vacate, and if he does not then she cannot have visitation there. A finding of contempt would depend on the specifics of the situation, but wouldn't be likely assuming that I had done what I could to follow the order.
As for the visitation earlier this week, the boy went to her house. She tried to talk about the TRO and stuff, and he refused to talk about it. They had a short argument and then she brought him to back to my house - the visit lasted about 3 hours.
Thank you all for your answers, I appreciate it.
This thread is closed to new comments.
A question - who is the party that enforces the restraining order? Who is the party that enforces that custody is maintained correctly? Is the cop you spoke to part of either of those authorities?
Hopefully either and both of these parties will be able to give part of a more conclusive answer.
posted by krilli at 6:07 AM on February 3, 2010