do I have case for a vexatious litigant motion?

[mrwatts3]

What is the name of your state (only U.S. law)? CA
Two Domestic violence cases dismissed, two TRO's dismissed, one more and do I have case for a vexatious litigant motion?
In the past two year ex-wife has falsely had me incarcerated twice for two separate Domestic Violence cases which were dismissed, having no merit. Since she has filed Two TRO's which were both dismissed, now she threatens to refile at her pleasure whenever she would like. If she files one more frivolous TRO do i have a good argument to motion and file vexatious litigant against her? Two DV cases(one of which included a CPO, so that would equate to 3 restraining orders against me), and two TRO's one more and is she a vexatious litigant? she has filed 4 cases against me frivolously so far thanks

 

[single317dad]

By the letter of CCP 391(b), she probably would technically achieve the status of vexatious litigant, but I'm not sure what you hope to accomplish by asking a judge to assign her that label. All it really does is require her to get an order allowing her to file each new complaint; if she says you're "abusing" her in some way, the complaint will almost certainly be allowed to carry forward. Every single day, these cases go forward with or without merit; I wish you luck in ending yours.

 

[mrwatts3]

By the letter of CCP 391(b), she probably would technically achieve the status of vexatious litigant, but I'm not sure what you hope to accomplish by asking a judge to assign her that label. All it really does is require her to get an order allowing her to file each new complaint; if she says you're "abusing" her in some way, the complaint will almost certainly be allowed to carry forward. Every single day, these cases go forward with or without merit; I wish you luck in ending yours.

Thanks for your response! And I hope to hopefully stop her from continuously filing TRO's frivolously, and ask the judge that he/she require a bond/security before case proceeds. Also let me add the last TRO was just dropped maybe 2 weeks ago and she threatens to do it again whenever she pleases.. also we have children in common and she feels she doesn't need to file for custody because for the moment she's getting what she wants filing back to back TRO's.

 

[CdwJava]

Courts are often reluctant to take action that might discourage someone from pursing legal action to protect them - be they TROs or crime reports. If the courts entertained an ex parte motion that would mean that at least one judge believed there was good cause to issue that initial order and set a court date. If no order was issued ex parte, then, maybe ...

It would have to be pretty darn clear that she's fabricating stuff to seek these orders. There can be many reasons why they are not upheld that would have nothing to do with being a vexatious litigant. I have seen cases tried for this for the same reason and the courts dismiss them out of reluctance to discourage legitimate DV victims from seeking help when they need it. So, do not be surprised if the court does not declare her next action to be that of a vexatious litigant ... provided it even applies here.

 

[mrwatts3]

Courts are often reluctant to take action that might discourage someone from pursing legal action to protect them - be they TROs or crime reports. If the courts entertained an ex parte motion that would mean that at least one judge believed there was good cause to issue that initial order and set a court date. If no order was issued ex parte, then, maybe ...

It would have to be pretty darn clear that she's fabricating stuff to seek these orders. There can be many reasons why they are not upheld that would have nothing to do with being a vexatious litigant. I have seen cases tried for this for the same reason and the courts dismiss them out of reluctance to discourage legitimate DV victims from seeking help when they need it. So, do not be surprised if the court does not declare her next action to be that of a vexatious litigant ... provided it even applies here.

Wow OK, Thanks for your response! The truth is always a little harsh but i appreciate your honesty. And well it actually is pretty clear she's fabricating as in her description of the abuse she only writes i showed up to get kids from school which is something i been doing all their life. so what if i had a TRO against her would she still be able to continuously file?

 

[CdwJava]

You having a TRO against her does not mean she cannot get a TRO against you. However, the courts will get awfully tired of the two of you if it comes to that. If she is clearly abusing the court process, the court will likely eventually sanction her for it.

 

[mrwatts3]

You having a TRO against her does not mean she cannot get a TRO against you. However, the courts will get awfully tired of the two of you if it comes to that. If she is clearly abusing the court process, the court will likely eventually sanction her for it.

OK Gotcha. So if she files again, i can really only just inform judge of her past actions and pattern of behavior. A few more Q's if you dont mind you've been helpful enough i know. Im a father what are the chances of a family court granting a emergency custody order for me? or do i have to file for paternity first? and if so how long does it typically take to get in front of a family court judge if i file at the courts tomorrow(monday)?

 

[Zigner]

OK Gotcha. So if she files again, i can really only just inform judge of her past actions and pattern of behavior. A few more Q's if you dont mind you've been helpful enough i know. Im a father what are the chances of a family court granting a emergency custody order for me? or do i have to file for paternity first? and if so how long does it typically take to get in front of a family court judge if i file at the courts tomorrow(monday)?

What's the emergency?

 

[mrwatts3]

What's the emergency?

Thanks for your answer!
Well for one: upon filing two frivolous TRO's back to back she has removed children from my home, changed their schools, is now hiding them from me committing parental alienation, will not let me see them at all.
for two: I just received info from a witness, (my friends mother) who says she seen my children's mother and children at a store, and my youngest child was being physically spanked by her new boyfriend.

 

[LdiJ]

Thanks for your answer!
Well for one: upon filing two frivolous TRO's back to back she has removed children from my home, changed their schools, is now hiding them from me committing parental alienation, will not let me see them at all.

That is not parental alienation. Parental alienation is if she, by her actions only, makes them dislike you or be afraid of you.

for two: I just received info from a witness, (my friends mother) who says she seen my children's mother and children at a store, and my youngest child was being physically spanked by her new boyfriend.

Spanking is not illegal, so that is not an emergency.

I am assuming that the two of you were never married? (because you mentioned establishing paternity) If so, mom has custody by default and if you are taking them from school, against mom's will, that is probably why she keeps making the accusations.

Instead of playing tug of war with the children, you really need to get cracking on a custody case so that there are clear cut orders/rules as to how the two of you will be sharing your children. Trying to do it on an emergency basis, with the above types of accusations, only makes you no better than mom and will only make you look just as bad as mom to a judge. Do it right and the problems will resolve themselves. If you are not already legally established as the children's father, that will need to be part of your case.

 

[CdwJava]

OK Gotcha. So if she files again, i can really only just inform judge of her past actions and pattern of behavior. A few more Q's if you dont mind you've been helpful enough i know. Im a father what are the chances of a family court granting a emergency custody order for me? or do i have to file for paternity first? and if so how long does it typically take to get in front of a family court judge if i file at the courts tomorrow(monday)?

You can inform the court of her prior actions at any court date you might have. The court will make up its own mind.

If paternity has not been established, the court may not consider granting you emergency custody at all! If you are a legal stranger, why would they? Further, what has happened that might put the child or children in immediate risk of harm? How long it might take to get before a judge depends on the court.

If you are dealing with multiple TROs, need to establish paternity AND are seeking an emergency custody order, you really need an attorney.

 

[single317dad]

Spanking is not illegal

While I would normally assert that Mom's new soul mate would be wise to keep his hands well away from someone else's children, at this point the OP isn't even Dad so there's little to nothing he can do about it.

OP: Paternity. First. Now. Then, as advised, get a court ordered visitation plan. I agree that you'll probably need an attorney at this point; you've made quite a mess of things.

 

[LdiJ]

While I would normally assert that Mom's new soul mate would be wise to keep his hands well away from someone else's children, at this point the OP isn't even Dad so there's little to nothing he can do about it.

OP: Paternity. First. Now. Then, as advised, get a court ordered visitation plan. I agree that you'll probably need an attorney at this point; you've made quite a mess of things.

Don't get me wrong...I would be livid if the other parent's new significant other spanked my child. Its simply not an emergency situation for custody purposes.

 

[davew128]

Spanking is not illegal, so that is not an emergency.

PC242, and other than the battery aspect, doesn't it concern you in the least that someone who is NOT the child's parent is spanking them?

 

[LdiJ]

PC242, and other than the battery aspect, doesn't it concern you in the least that someone who is NOT the child's parent is spanking them?

See my post right above yours Dave.

Personally, I don't believe that stepparents or significant others should EVER use physical punishment of any kind, on a child. However, if the parent allows it and there is no bruising or anything else to indicate child abuse, its not going to get someone an emergency custody order.