Our daughter left her husband because he was abusing her, after 12 yrs of marriage, she took the children and moved, he got visitation and after being with him for 3 days the children came back and called her nasty names broke things in the home and told her they wanted to live with Dad, who has a permanent abuse order on him from a previous relationship. The Children are 12 and 14 yrs old. He came and picked them up and took them from her, she didn't call the police because she's afraid of him. He also was in jail for 18 months before she knew him for running down a State Trooper with his car.
Family Law Attorney
I don't think the restraining order is an automatic bar to him getting custody. It's old, involves another person, and doesn't prove by itself he is a threat to the children. The 14 year old is getting to the age where his/her voice can be heard. What should happen and likely will happen is that once the divorce is started and custody disputed, a guardian ad litem will be appointed to investigate, interview everyone and make recommendations to the judge. The standard is best interests of the child, but with teenagers being heard (thru the GAL, never in court) and having substantial choice unless he is a substantial risk to their safety.
14 yr old is already starting to vote with his/her feet. The longer he/she remains in his custody, harder to reverse. Your daughter should meet with a local divorce atty. ASAP to discuss her options.
To questioners from West Virginia & New York: Although I am licensed to practice in your state, I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
Most likely yes and your daughter should work with a local attny and he or she will protect her, take care.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.