My son was with his baby momma for 4 years. There’s never been any domestic violence of any kind. We were set to request 50/50 joint physical & legal custody. BUT, in the last week. The baby momma dropped a bomb on my son. Telling him that your mom (me) will no longer be the daycare provider. Without his knowledge she went and obtained a new daycare provider. I’ve taken care of the baby since she was born almost 2 years ago. My son lives in my home. He is able to see his daughter during his lunch hour from his work and after work. He got frustrated with her telling him she has another daycare provider. Which to him means he will have little to no contact with his child. In response with his frustration he said “If you were a guy I would kill you”. It was an isolated incident. No history of violence with my son. Now we have to address the TRO before requesting 50/50 custody. What are the chances my son will not be awarded 50/50 custody due to this incident? TIA
There is no predicting how this will go. A lot will depend on the judge—frankly your son needs an attorney, so that whatever comes out can be dealt with in the way that will be persuasive to a judge. Lay people tend to get exasperated and that never flies in a court room. They also think they need to rebut every lie and that doesn’t work either.
Some lies or so obvious that the judge will see right through them, I don’t attorney is usually able to tell when that is happening. No later person who is deeply involved with an emotional issue is going to have that ability. So because you’re dealing with slippery character you’re going to need a very skilled attorney who is well-known by the judge in the court where the case is being heard.
Your son should retain counsel to defend against the TRO, and time is of the essence to enable an attorney to properly prepare where DVRO trials are typically set for trial with little notice to the party who is being accused of domestic violence; your son is only entitled to one continuance, absent a showing of good cause; and finally because I'm assuming that if the Court granted the TRO, the Court made custody orders pursuant thereto, likely limiting your son's contact with his child. Therefore I imagine your son wants this over as quickly as possible.
Regarding his likelihood of success. In California, abuse, as it pertains to your son's case, means to intentionally or recklessly cause or attempt to cause bodily injury to the victim (not the case here), or to place the victim in REASONABLE fear of IMMINENT serious bodily injury. I would argue that the mother of your grandson was not placed in reasonable fear of imminent bodily injury by virtue of your son's hypothetical comment, especially placed in the context of the current custody dispute. While it is true that no one can predict what the court will do in this case, if he is being accused of nothing else (as you stated), I think your son has a fair chance of prevailing. Absolutely he needs an attorney (if for no other reason than to prevent him from losing his temper in court) and should not file any documents responding to the claims against him prior to having them reviewed by an attorney.
If the DVRO gets dismissed, custody will not be affected. If the restraining order is granted, custody may be affected. Though it appears some pertinent details may be missing concerning the daycare issue, once the restraining order is resolved, it appears reasonable that you would provide daycare for your grandchild during your son's custodial time and your grandchild's mother could select a provider during hers.
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