Wifes ex filing for sole custody after 9 years of 50/50 cust


#1

My wife and her ex at this point have joint 50/50 custody that was settled 9 years ago. I have been living with my wife and kids for 8 years now. There has been no problems until now.

My wife and I just went through what I would call a rough patch in our marriage. No ones marriage is perfect. During a separation period between my wife and I, she filed a restraining order and had me arrested for domestic trespass. Emotions ran high and things got out of hand and we are only human, there was never any physical violence before, during or after this. None of this was done in front of the children. The charges were dropped and we got back together 4 months after this living apart.

I have never been charged with any sort of violence, nor has my wife. During the last year we had lost our house to foreclosure as a result of me being laid off. My wife was diagnosed wife cervical cancer. She went through chemo and radiation all while being a full time student. She took care of 4 children held a job down and also had a full hysterectomy as a result of the cancer. Things have been less then perfect for us this year but that does not make us abusive parents. Yes we have arguments but they are everyday marital arguments, not knock down drag our fights her ex is making them out to be. We also have 3 boys that seems to be showing some signs of stress but none of them show any signs of abuse or that they are afraid of me.

My concern is, would a judge allow information from a restraining order that was dropped to be used against my wife and I?

Also, if I was able to have this expunged before the custody hearing would they then have to disregard the information that was found?

Wifes ex has applied for an emergency custody order and is now asking for sole custody claiming there is domestic violence going on in the house and that we neglect our daughter. That she is afraid of me, and we refused to allow her to talk about her being afraid of me. He claims is was brought to our attention back in Oct. of 09. If there was abuse that he believed to be going on then why did he not file then and call DSS. That’s what I would have done if someone told me it was going on. Now all of the sudden it warrants an emergency custody order. Based on a 9 year olds confused outlook on her already confusing custody agreement.

Everything that had been said about my wife and I is here say or he claims that our daughter has told him all this. She is now 9 years old. She hasn’t been told what is going on and I don’t think she understands either. When we talk to her about how she is feeling she tells us that she feels left out. Her brothers get to spend more time with us and that she feels left out because of the things they get while she is at his house on his weeks.

I hate that this is happening but does any of this sound like a ruling would be made on his behalf to grant him full custody? At this point our daughter is going through a stage where she is testing us and this is the result of how he deals with it. Like him telling her she doesn’t have to listen to me because I’m not her real dad. Or that her brothers on not her real brothers because they are not from the same father.

Will a judge hear our daughter at 9 years old and take her word that she understands whats going? Will the judge even hear confession from a 9 year old that may have been lead to say these things? We are totally lost and maybe hoping from some advice on how to prepare or maybe some steps we can take to protect ourselves and our daughter.

Thanks,
Joe


#2

The facts and circumstances surrounding the alleged domestic violence are admissible in court, this is not something that is expunged and kept out of court, however you will have time to explain your side of the story to the court.

A judge may speak to your daughter in chambers (alone) if he or she believes it is necessary to ascertain what is truly in her best interests, however the judge does not have to speak to the child, and may not always find that what the child wants is in the child’s best interests.


#3

So even if I was to file to have the dropped charges expunged, and the court date was after the date it was expunged it can still be used? I’m not suggesting it be expunged by my attorney or suppressed at the custody hearing. I’m suggesting I do this now, through the court system, to have my crimical record expunged, before the July 2010 court date.

The court date for a new custody hearing is set for July 2010. If I had my record expunged now it would be gone as of that date. Can the information that is public record “now” be used after it’s expunges in July. Will that still be admissible if it’s been expunged by the court date.


#4

Yes, the events surrounding the incident can still be inquired about in court whether or no it is expunged.