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Originally Posted by califdadof3

Lets not make the OP too nervous. He will still have options either way it goes and the restraining order can't be used against him if the evidence shows otherwise.

( quote from link )

The section 3044 presumption, however, does not change the best interest test, nor supplant other Family Code provisions governing custody proceedings. This presumption may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent. (§ 3044, subd. (b)(1).) Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. (§§ 3020, subd. (a); 3040, subd. (b).) And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order.

( end quote )


reference link:


http://www.courtinfo.ca.gov/opinions...ts/G041642.DOC

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Well, a presumption is a presumption. And I disagree with whomever said, "Nor does the statute establish a presumption for or against joint custody". It most certainly establishes a presumption against the offending parent having it, that's exactly what the statute says.

I don't think it's as easy to rebut a 3044 presumption as the commentator thinks.

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Originally Posted by cadillac59

Well, a presumption is a presumption. And I disagree with whomever said, "Nor does the statute establish a presumption for or against joint custody". It most certainly establishes a presumption against the offending parent having it, that's exactly what the statute says.

I don't think it's as easy to rebut a 3044 presumption as the commentator thinks.

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I guess it can be argued at a higher level court because that's where the quote came from.

( quote )
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KEITH R.

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

H.R.

Real Party in Interest.
G041642

(Super. Ct. No. 06D008776)

O P I N I O N
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nancy Pollard, Judge. Petition granted.
William J. Kopeny & Associates and William J. Kopeny for Petitioner.
No appearance for Respondent.
Law Offices of Patrick A. McCall and Patrick A. McCall for Real Party in Interest.


( end quote )

In my state they do not consider a restraining order against a spouse as proof they can not have visitations with the child. They presume that while the spouse may have problems with the other parent it doesn't mean they are abusive/neglectful toward the child.

Quote:

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Originally Posted by califdadof3

I guess it can be argued at a higher level court because thats where the quote came from.

( quote )
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KEITH R.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

H.R.,

Real Party in Interest.
G041642

(Super. Ct. No. 06D008776)

O P I N I O N
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nancy Pollard, Judge. Petition granted.
William J. Kopeny & Associates and William J. Kopeny for Petitioner.
No appearance for Respondent.
Law Offices of Patrick A. McCall and Patrick A. McCall for Real Party in Interest.


( end quote )

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I don't think I've seen this case before. Do you have the official citation? (Incidentally, I know Patrick McCall, who's listed as counsel on the case. I've attended seminars he's put on.)

I assumed the cite came from someone who knew something about section 3044, but I don't agree with everything any commentator says about the law, or even with what some appellate court justices say about it. Lawyers disagree with other lawyers, and lawyers with judges and judges with other judges all the time. I just think it sounds stupid to say section 3044 doesn't create a presumtion against joint custody. The hell it doesn't. It specifically says it does with respect to the perpetrator of DV. That's the whole point of the statute.

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Originally Posted by cadillac59

I don't think I've seen this case before. Do you have the official citation? (Incidentally, I know Patrick McCall, who's listed as counsel on the case. I've attended seminars he's put on.)

I assumed the cite came from someone who knew something about section 3044, but I don't agree with everything any commentator says about the law, or even with what some appellate court justices say about it. Lawyers disagree with other lawyers, and lawyers with judges and judges with other judges all the time. I just think it sounds stupid to say section 3044 doesn't create a presumtion against joint custody. The hell it doesn't. It specifically says it does with respect to the perpetrator of DV. That's the whole point of the statute.

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The link I posted is from an actual filing and its really recent.

Filed 5/19/09; pub. & mod. Order 6/5/09 (see end of opn.)

So the whole thing should be in that doc file.

I hope that helps.

It may actually behoove you to "fight fire with fire", that is to file your own restraining order against her. In fact, I strongly feel that if you were to consult an attorney this is what (s)he would advise you to do. This is the best way to "force" the judge, so to speak, to consider all of the evidence and truly listen to "both sides" of the story and to entertain witnesses on your behalf as well as hers.

I understand that a restraining order isn't going to help me if I ask for joint custody. What kind of evidence do I need to present to oppose her claim of abuse. If I just say it didn't happen then why is her word more creditable than mine. I have a witness that came over after the "abuse" and watched her yell profanities at me in front of our son. If anything shouldn't she be just as abusive as she claims I was?

My lawyer has not suggested this to me at this time but I will ask his opinion about it. The hearing is a week from tomorrow. Don't you think this will just look like I am filing a restraining order because she did?

You said she is acting like things have been fine? Does that mean that she has been talking and communicating with you? Are you separated and living away from her?

She never told anyone about the alleged abuse accept maybe her parents. The major incident that she claims there was abuse happened over 6 weeks ago. She didn't leave at that time. She waited until weeks later. She also withdrew all the money from our savings account a week before she left and took both our computers and all our paperwork. It just seems to me that if you were in fear of someone you wouldn't have them watch the baby while you systematically prepared to take everything of value in the home and all of the money in our bank accounts. That should be supportive of the fact that she wasn't really scared but was just trying to come out of the divorce on top right? She also filed for the divorce two days before the DVRO. Wouldn't you file the restraining order first if you feared for your safety?

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Originally Posted by morgan duncan

My lawyer has not suggested this to me at this time but I will ask his opinion about it. The hearing is a week from tomorrow. Don't you think this will just look like I am filing a restraining order because she did?

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Definitely bring it up with your lawyer. It's not really a case of "monkey see, monkey do" but rather, like I said, to insure that you get your day in court ; your wife already has hers in the bag, having filed the initial order and gotten the TRO against you. As the plaintiff, she's going to have the leverage to say "he said....' ; "he did... " ; "my friend here saw him do... and heard him say... " and on and on ; you know how it goes. So by filing your own restraining order and making yourself a "counter plaintiff" so to speak, you give yourself that same leverage to present the same sort of evidence against her and in your favor. I've heard lawyers tell clients facing restraining orders to do just that. I've also heard police officers [off-duty, on a strictly personal level] tell people the same thing.

What I am trying to get at is that if she got a restraining order against you and then she is not following it then you can use that she broke PFA by not keeping you away.
I don't know how 'involved' you are with her at this point though

On Sunday July 12 my wife left the home. I have not seen her since or talked to her. I went to the courthouse to file some custody papers and found out that she got a TRO. This was about 4 days after she left. Before they served me with the papers she texted my phone saying " lets meet for coffee and talk". My lawyer said this won't be much good because she will just say she was trying to serve me the papers. I couldn't be more nervous about this. I just want some custody of my son. I feel like I'm living a nightmare. I'm hoping that she hasn't hired a lawyer because she filed the TRO with only a paralegal. How will I know if she has hired a lawyer? Do I have to wait until I go to the hearing to see if she has a lawyer?

Okay I was wondering because of the way you worded the one reply.
I don't know how you could find out if she hired a lawyer. Your lawyer might know. Other than that I don't know.

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Originally Posted by morgan duncan

On Sunday July 12 my wife left the home. I have not seen her since or talked to her. I went to the courthouse to file some custody papers and found out that she got a TRO. This was about 4 days after she left. Before they served me with the papers she texted my phone saying " lets meet for coffee and talk". My lawyer said this won't be much good because she will just say she was trying to serve me the papers. I couldn't be more nervous about this. I just want some custody of my son. I feel like I'm living a nightmare. I'm hoping that she hasn't hired a lawyer because she filed the TRO with only a paralegal. How will I know if she has hired a lawyer? Do I have to wait until I go to the hearing to see if she has a lawyer?

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If no lawyer's name appears on the TRO, then check the court's file to see if anyone filed a substitution of attorney (if they did you should have had a copy served on you or on your lawyer). That's how you find out if she's hired anyone.

I don't think you need to worry about this so much. Every time I'm in court I see about 10-15 of these on any judge's morning calendar. They are pretty common, and most are nonsense.

Even if you get a restraining order issued for some period, you can always go in later and ask that it be terminated. And no matter what, you are still going to have rights to your child. They're not going to impose supervised visitation on you or anything of that nature, not based upon what you've explained happened here. So, don't worry so much about it. I've represented people many times on both sides of a TRO in California and it's not that big of a deal.

If you all can't get along and live peacefully together as two reasonable adults then it is time to walk through the court doors and get a divorce. These domestic violence incidents are not good for your child. I am no expert on this but joint custody would be your best remedy for now.

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Originally Posted by SoloTruth

If you all can't get along and live peacefully together as two reasonable adults then it is time to walk through the court doors and get a divorce. These domestic violence incidents are not good for your child. I am no expert on this but joint custody would be your best remedy for now.

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I am sure that that is the goal but his immediate problem right now is OP's concern of getting through this TRO hearing in a week.

Thank you very much cadillac59 for your info. I'm trying to stay calm and collected. I really don't care about the restraining order except that I don't want it to affect my ability to get joint custody. There really isn't much at stake except our son. He is what's most important. We just barely bought a house and all we really own is a bunch of second hand furniture and a lot of debt. What impact do you think it will have on the divorce concerning my wife taking our computers, our camera, and emptying out our bank accounts before she left? What do you think my chances are that I will be able to return to the home. She is not living there and I don't thnik she intends to return there either.

How do I change my name on this site? I just thought how stupid it would be if she read all this stuff!

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Originally Posted by morgan duncan

how do I change my name on this site? I just thought how stupid it would be if she read all this stuff!

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You can always set up a new account. But you can't change it.

Odds are she's not going to find you :)

EDIT: Besides, as long as everything you've said is truthful, there's nothing to worry about. What can she do: ask the judge to punish you for being honest and wanting advice?