Divorce/custody/guns/legal question

[needadvice]

Hi folks,

I'm a board regular (well, semi-regular, at least) but decided I wanted to post this one on a different handle.

I have a relative in Virginia who is going through a heck of a lot right now, from some major health issues to a divorce with an unstable ex, who has a history of erratic behavior and has owned many guns. Despite some of those issues -- from nearly shooting the family dog in front of children to a DUI, leaving guns in reach of his 13-year-old and toddler, as well as a counselor's diagnosis of being passive-aggressively suicidal at one point -- he managed to score unsupervised visits. Awesome.

The court did, however, rule that he could no longer own guns for a period of time (still in effect) after the DUI and he supposedly got rid of them. My relative's 13-year-old visited with her father this weekend and he instructed her to find something near the night stand. She looked in the nightstand and saw a gun. She wisely later told her mother, my relative.

My relative's attorney has not been someone we've trusted 100 percent along the way. Plus, my relative -- we'll call her Jane -- has financial issues along with the major health crisis, and the attorney now is saying he can't really help her unless he knows she will pay on time. In fact, he snarkily said "I can't finance your divorce." Which was a jackass comment since she wasn't asking him to do that, but to help her figure out how to protect a 13-year-old and a 4-year-old.

She contacted CPS, who interviewed her daughter today and told her to call the cops. But the attorney told her he can't file the motion about her soon-to-be-ex violating the divorce court order regarding the gun ownership because of the money -- or that if he did file the motion he would then have to show up in court with her. Which confused me -- I would imagine people switch attorneys all the time. Again, we don't trust him 100 percent, so I'm not sure.

The ex is supposed to have visitation tomorrow night and there's no way she will send her kids to him at this point. She's willing to violate the court order, because she's not sure if all the red tape of everything else will settle in time. Fortunately, CPS seemed proactive today, but just wondering if anyone has any ideas on:

1. What she can do to keep the kids from seeing him without violating the court order if CPS falls through.
2. Whether she really needs the same attorney to file the motion and follow up later or could switch? (Reaching here, I know, but hoping one of our budding lawyers can help ....)
3. How to find a good pro bono divorce lawyer.

Obviously, I'm checking into other research, but in the midst of that, figured I'd check in with you fine folks since we have a good array of knowledgeable, world-weary people around here. I feel terrible for her since she's facing a potentially life-threatening situation in addition to all this and just appreciate any advice offered.

Thanks.

 

[Inky_Wretch]

Could she contact the local cops? With the court order about guns not being allowed in the house, could they perform a search to make sure there aren't any?

 

[needadvice]

She did call the cops and I haven't heard from her since to get an update. Her initial impression was that they were sympathetic, but they were limited in what they could enforce. I think her biggest thing is trying to figure out what she can do about getting a motion filed in court.

Her lawyer told her she could release him and then file it herself or with another attorney. Seems too complicated for her todo herself so trying to find pro bono attorneys. Hoping CPS can help tomorrow too.

 

[qtlaw]

Unfortunately, the attorney just does not want to sink any more time into the case if he's not getting paid. I'm not condoning it, just sucks for your relative.

As for finding a pro bono lawyer, have her call her local (in California county) bar association to ask for a referral.

For the time being, she could slap some motion together, basically telling her story, and at least file it. In the meantime, she has to weigh perhaps not turning the kids over and forcing the father to seek relief, at which time the mother could give her side of the story. But the risks are that he will become unglued and get violent. The mother has to absolutely make sure that the daughter is 100% solid, otherwise, the judge will come down hard on the mother if her story is not corroborated.

 

[needadvice]

Thanks, qt. I understand him wanting to get paid. She's mostly caught up but a few hundred behind.

The daughter will corroborate, I'm sure. So, do you think the potential risk of the situation would help her with a judge then if she's forced to withhold the kids? I don't think she's as worried about him getting volatile in that situation as she is wondering if the contempt will hurt her long-term. Though, of, course, the truth is when you think someone's unstable you're not sure what will set them off.

 

[Det. Jimmy McNulty]

http://www.dadsdivorce.com/father_divorce_forum/viewforum.php?f=4&start=0

 

[Baron Scicluna]

I'm not a lawyer or anything. Just my 2 cents:

First, a question: Is he not allowed to own a gun because of the DUI, or is it because of the divorce order? If it's because of the DUI, a criminal case, then it sounds like he is violating the terms of it. The cops, if they find a gun, should arrest him.

If it's because of the divorce order, then it's still BS about what the cops can do. It's a civil case, but they can still search the home, and report if they found a gun. They may not be able to take the gun, if he owns it legally, but they can report that he has one. The wife can use that report in court.

Foremost, the children's safety is the most important thing. If she was just witholding the visits on her whim, then the court wouldn't look too kindly at it. The fact that she called CPS may help her with the court if they ask her why she withheld the visitation.

Also, do the kids have a law guardian to look out for their interests? If so, she should contact him/her to notify them of the situation. If the kids don't have one, suggest that she ask the court to appoint one for them.

Oh, and she can change lawyers at any time. It may delay things, however.

Good luck to your relative.

 

[93Devil]

http://www.dadsdivorce.com/father_divorce_forum/viewforum.php?f=4&start=0

Wrong place. Wrong time.

 

[93Devil]

There has to be something set up for women in her situation at the county level.

Is there a battered woman shelter in her area? I don't think she should go there and stay, but I am pretty sure if there is an answer, they would know it.

 

[bigpern23]

In my state, she could file an Ex Parte motion for emergency relief for temporary sole custody. The judges here generally rubber stamp them if there's any chance a child's safety will be threatened. Then there is a hearing about three weeks later (depending on the court calendar) to hash out the accusations.

The tricky part, of course, would still be to prove that he has a gun. If the cops won't go search the house, not sure what she would be able to do after the second hearing.

CPS should be able to go inspect the home given an accusation (which can be anonymously, FWIW), but I think they have to give notice to the parent.

 

[qtlaw]

Thanks, qt. I understand him wanting to get paid. She's mostly caught up but a few hundred behind.

The daughter will corroborate, I'm sure. So, do you think the potential risk of the situation would help her with a judge then if she's forced to withhold the kids? I don't think she's as worried about him getting volatile in that situation as she is wondering if the contempt will hurt her long-term. Though, of, course, the truth is when you think someone's unstable you're not sure what will set them off.

I am not a family lawyer, never have. Its one of those things you weigh, yes you might be in contempt, but if the judge sees that you have this very clear (that's key here) case that he has a gun in violation of the divorce decree, that is worth more because its directly related to the safety of the kids; a DUI, then the effect is not that direct.

Sorry I did not check back sooner.