Dismissal

[futuredust]

What is the name of your state (only U.S. law)? AR

Asking for daughter, forgive the third party, please.

She has a ten year order of protection for her and child. Has been in effect for a year.

Dad has now filed for visitation claiming he has been in rehab for 8 months (but is seen daily at local liquor store making purchase).

The clerk who signed, dated and sealed the petition with the first court date put the wrong date. She dated it as signed and entered on April 18th, 2010. However, it was submitted on March 18th, 2010, the same day she was served. It is a clerical error, and we know it will not stop the inevitable.

However, she was blindsided and has no funds for an attorney. Can she have this petition dismissed on the clerical error affording her more time to obtain funding for an attorney. How would she do so, would she enter a motion to dismiss? She has already filed her answer to the petition with the court and the court date for temp. visitation to be established prior to a future court date is on April 22nd.

She has met with an attorney, and he told her it could be dismissed on the error, but she cannot afford to retain him at this time. He also looked over the records that she brought with her to the meeting and said that he sees no way a judge would give him visitation. He has a very violent criminal record, with over 30 charges in just the county they all live in. She is waiting on the records from other counties where he also has charges. The records in her possession are 83 pages long, and are since the birth of the child, they are not all against her/child. And do not include the order of protection for her and child when he tried to take child and run to another state with child.

He is also claiming he now has a stable home in which to visit the child, which is in fact his parents home which has been his legal residence all along. In that home both his parents have long criminal records as well, including domestic violence, drugs and one is a prior registered sex offender.



She needs to buy a little time, so if she can dismiss this will give her a couple more weeks to retain an attorney. If she can dismiss can anyone point us to a template for this motion? We do not have a self help or standard forms here in Arkansas.

Thanks in advance.

 

[CJane]

I don't think a dismissal is likely.

She SHOULD request a continuance, so that she can obtain counsel. But she'll NEED an attorney by the next court date.

 

[futuredust]

Ok, so when she goes to the first hearing on the temporary visitation she should just ask the judge for a continuance so she can retain an attorney.

Can dad's attorney request visitation through the continuance?

The big issue here is dad's violent nature. Daughter has already contacted the department of children services to see if they offer supervision of visits, and they said they would if it were court ordered. While she does not want to cut dad out of the child's life, she has serious concerns for her safety. And has said that if he would do supervised to allow the child to get to know him as well as make sure he is able to control himself, she would be willing to transport the child to the center how ever often the judge deems.

Should she bring that up if the attorney requests visits even with the continuance?

She knows the importance of having an attorney for this, which is why she is trying to find a way to get more time. She cannot do this alone, and I have told her I cannot hold her hand in court..

 

[SESmama]

I am rather confused. You state she has a 10 year PO against him covering both her and the child. It has only been in effect for 1 year. How would he be able to file for visitation if the PO covers the child and is in effect?

If she has a PO that covers the child as well why would she agree to starting visits with him?

 

[futuredust]

I am rather confused. You state she has a 10 year PO against him covering both her and the child. It has only been in effect for 1 year. How would he be able to file for visitation if the PO covers the child and is in effect?

If she has a PO that covers the child as well why would she agree to starting visits with him?

Because he is the child's father, if he has honestly made changes and is willing to reconnect with the child, then why should the child not have her father in her life?

Do I personally believe he has made the changes, no. But this is now up to a judge, and there is the possibility a judge will allow him visits. My daughter would like to request all visits be supervised, if they are granted. She needs an attorney to present her arguments for either no visits or supervised.

He did in fact go to rehab, to escape a jail sentence. But he was also ordered to attend anger management classes, which he has failed to do.

The order of protection states he has zero rights to visitation, but that he can, in the future, petition the court for visitation.

In his petition for visitation the OP is mentioned, and he is now claiming he is fit to exercise visitation based on his drug/alcohol rehab. The petition states that mother is fit and should retain all custody and care of minor child, he only seeks visitation.

 

[LdiJ]

Because he is the child's father, if he has honestly made changes and is willing to reconnect with the child, then why should the child not have her father in her life?

Do I personally believe he has made the changes, no. But this is now up to a judge, and there is the possibility a judge will allow him visits. My daughter would like to request all visits be supervised, if they are granted. She needs an attorney to present her arguments for either no visits or supervised.

He did in fact go to rehab, to escape a jail sentence. But he was also ordered to attend anger management classes, which he has failed to do.

The order of protection states he has zero rights to visitation, but that he can, in the future, petition the court for visitation.

In his petition for visitation the OP is mentioned, and he is now claiming he is fit to exercise visitation based on his drug/alcohol rehab. The petition states that mother is fit and should retain all custody and care of minor child, he only seeks visitation.

I think that she should go to court and request a continuance to hire an attorney. She should also emphasize the 10 year restraining order and dad's record should his attorney ask for any temporary visitation. She should also emphasize, and have proof of, dad's parent's criminal history.

I think its very unlikely that a judge would even order temporary supervised visitation in this situation. I think that most judges would exercise more caution than that. However I think that in an absolute worst case scenario the worst she would be looking at is temporary supervised visitation.

Seriously, a 10 year restraining order that includes the child? Those are not easily come by and whatever dad did had to be really bad. I really cannot see a judge not exercising pretty serious caution before determining that dad should have contact with/access to the child.

If it had been 5 years into things and dad had hard evidence that he had totally turned his life around it might be a different story. However, that is not the case here.

 

[futuredust]

I think that she should go to court and request a continuance to hire an attorney. She should also emphasize the 10 year restraining order and dad's record should his attorney ask for any temporary visitation. She should also emphasize, and have proof of, dad's parent's criminal history.

I think its very unlikely that a judge would even order temporary supervised visitation in this situation. I think that most judges would exercise more caution than that. However I think that in an absolute worst case scenario the worst she would be looking at is temporary supervised visitation.

Seriously, a 10 year restraining order that includes the child? Those are not easily come by and whatever dad did had to be really bad. I really cannot see a judge not exercising pretty serious caution before determining that dad should have contact with/access to the child.

If it had been 5 years into things and dad had hard evidence that he had totally turned his life around it might be a different story. However, that is not the case here.

Thank you LDiJ and CJane.

For some reason, probably because it is close to home, I was at a loss and needed to ask.

The order of protection was given after repeated physical attacks, and threats against their lives. One of which cost me 50k in reconstructive facial surgery, her surgeon does a lot of work with DV victims and we worked out a payment schedule, he wrote off most of his costs and all of the plastic surgery costs. The 50k was for the most part the hospital billing, not the surgeon. She was holding the baby at the time. I think the fact she was holding her was the only reason she lived, in her own words she said she knew she couldn't fall she had to stay upright for the baby. (Her apartment looked like a murder scene, the blood spatter was on the ceilings and walls)

Dad was high on meth when he did it, and claims no recollection of the event. He literally tried to put his fist through her face, he was almost successful. She has a metal plate in her face from maxillary collapse.

The pictures and records from the doctor will be in court with her, along with criminal records from everyone in the household.