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How can my lawyer use a defense of Intimate Partner Violence in family court if he has custody?

Carthage, NY |

I escaped an abusive marriage w/my children after 13 yrs, I did everything I could for them even with nothing that I had. When I left him he had everything, I had nothing, we began to battle it out in court. I was broken down emotionally, and the torment he put me through, I felt like I had no more fight left in me and attempted suicide, he was granted sole legal custody. In five yrs I have been fighting for my rights back and have never been disconnected w/my children. I was granted every other wkend visits, holidays, bdays etc. Even in 5 yrs, they still remained in my life, How can I fight for my rights back for my children?

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Attorney answers 5

Posted

Based upon what you are saying you still have your rights you just don't have custody. Unless there is a substantial change in circumstances you will not be able to request much less win a custody battle at this time.

I hope you found this answer helpful and if so, please let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated. You can also choose a "best answer" if you wish. This is easy to do and greatly appreciated.

This advice is not meant to create an attorney-client relationship and is a general anwer to the question posed.

Asker

Posted

There has been a substantail change in circumastances, he is willfully violating the custody order, by not allowing me visits w/them & not allowing me to have contact w/me, he has remarried & his new wife is trying to alienate them from me and intervening in the custody order, I filed a violation petition against him and it has yet to be heard in front of the judge, what can I do.

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

You have done what you can do which is file a violation petition. You should hire a local attorney to help you and guide you on the best course of action. Based upon what you are saying I don't see a change of circumstances I see a violation. However when you speak to an attorney he may elicit additional facts from you that may indeed be enough to file for custody. If you cannot afford an attorney you can ask the court to appoint one to you if you qualify.

Asker

Posted

I did have an attorney who did not seem to be 100 percent helpfull. We went to trial yesterday, my violation petition was dismissed w/out predjudice, because we settle with a modification of the original custody order. My lawyer told me, if he violates the court order again, I can bring back all the violations from this past year because he violated the original court order? Is this accurate? Im asking this because I settled, and she told me if he violates the order again I can bring back my petition for violations of the original court order.

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

The answer is no you cannot bring up the past violations (except to show a pattern of behavior). Once you settle a violation petition, only new violations can be brought to the court.

Asker

Posted

what kind of paper work do I need to file to show the pattern of behavior, do I file an order to show cause because there is a history of willful violation, and when we settled in court they were dismissed without predjudice, she told me I can bring the violation petition back in, if he violates again, and he did. My question is this, what do I have to do to show this pattern of behavior?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

It would be part of the petition you file. Your best course of action is to retain an attorney to go over the facts and circumstances of your case so that he can decide what to put in your papers and how best to proceed.

Asker

Posted

I had a lawyer, all I can afford is a public defender, we were in court last wk, when we settled with the agreement she was then dismissed from the case, I have to reapply for every new petition, thats what I was told. After we were in court last Thursday, it was ordered that he give me visits w/my daughters on Mondays, this past Monday only my youngest daughter was available, he refused to tell me where my oldest daughter was, when he came and picked her up I asked him and he told me to contact my lawyer she will tell me. I called her yesterday left 2 msgs I never got a call back. They told me she no longer represents me the only thing that she can discuss w/me is the case, she cannot offer any other legal advice until I get further represenation by her or any other public defender (whoever gets assigned to my case). I called the school, yesterday to see if she was there, she had been absent since Friday, I went to her counselor (at the mental health unit) they told me she was safe she was in a hospital, they gave me the name of the hospital she was in, I called there and they had no record of her being a patient there. I called there 3 times and other area hospitals, she was not in any of them. I went to the state troopers, they went to their home, and he (my exhusband) told them that she is safe. I went back today to try and speak to her counselor the mental health unit were she goes and spoke to the director again, I told her that the hospital where she told me she was at had no record of her being there, she said that is the only information that she has, I asked who told you she was in this hospital, she said that is not relavent...My sister, then called my ex-husband to ask where she was he told her she is home now she is safe, I called the school again to see if she was in school today and they said yes she was..I called my lawyer (before I knew this) and left another msg w/her secretary, she said she got a call from his lawyer saying that she was in a different hospital, and that she would be there for at least 10 days, I told her that doesn't make any sense, I called the school and they confirmed to me today that she was there. I asked her why did the mental health unit tell me she was in a different hospital than what his lawyer said, she will be there for at least 10 days then why did they release her only after 5 days? I want answers and I dont know what to do, please help?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

Unfortunately the only thing you can do is file a new petition based upon what is happening allegeing a new violation. Once that is done you can request that counsel be appointed to you again.

Posted

Not to sidestep your question, but truly, if you have an attorney who is working with you and familiar with your case, that is the person to whom you should be directing your questions and expressing your concerns. You are in a difficult and complicated situation and a "simple" answer isn't available here or anywhere else. I suggest you talk to your attorney and if you do not feel that he or she is able to do what needs to be done, or you've otherwise lost confidence, then you should seek out another attorney. Good luck!

Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@hotmail.com. All of Ms. Brown’s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.

Posted

Since you already have visitation rights with your children, I assume your question is how do you get back custody rights. Unless there has been a change in circumstances since the custody award was made (other than just the passage of time), that may be difficult to accomplish. There may be ways for you to acquire some of rights that custodial parents have without the "label" of being a legal custodian. You should discuss your situation thoroughly with an attorney well versed in family law.

This answer does not constitute the establishment of an attorney/client relationship. It is a general answer based on, and expressly limited to, the information presented.

Posted

Repost this in Family Law.

Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)
Jlopiccolo@hbclaw.net

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

Posted

If you believe you have a grounds, filed for modification.



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