Is my plan a legal one?

[snowy5741]

The father of my two children and I split about two months ago. I was a stay at home mom, and he kicked me out with out a dollar to my name and two mouths to feed. Recently things became violent. I filed a report and he was served just today with the restraining order. I plan to return with my two children to what once was our home, and change the locks. My name is still on the lease. On all forms for therestraining order I put that residence as my address.Can I just do this??

My children are young and remain in my care 6 days a week. We shouldn't have had to leave to begin with.

Secondly. There is a custody agreement we made for our oldest one. Which I have been abiding by. The youngest one he has no legal rights too, although she is his. In light of recent events, I am concerned that he wont return them just to hurt me. He has broken and shoved a smart phone down my throat with my kids looking right at him. My BIGGEST concern is that he will do something to them just to get me. How do I protect my kids??

 

[snowy5741]

I forgot to add in the state of wisconsin!

 

[Silverplum]

The father of my two children and I split about two months ago. I was a stay at home mom, and he kicked me out with out a dollar to my name and two mouths to feed. Recently things became violent. I filed a report and he was served just today with the restraining order. I plan to return with my two children to what once was our home, and change the locks. My name is still on the lease. On all forms for therestraining order I put that residence as my address.Can I just do this??

My children are young and remain in my care 6 days a week. We shouldn't have had to leave to begin with.

Secondly. There is a custody agreement we made for our oldest one. Which I have been abiding by. The youngest one he has no legal rights too, although she is his. In light of recent events, I am concerned that he wont return them just to hurt me. He has broken and shoved a smart phone down my throat with my kids looking right at him. My BIGGEST concern is that he will do something to them just to get me. How do I protect my kids??

Regarding your first question:
Is HE on the lease? Even if he isn't, you still likely have to follow the law to evict him. He hasn't been convicted of anything: at this point, you have accused him and been provided a restraining order.

http://wilawlibrary.gov/topics/landlord.php

http://www.nolo.com/legal-encyclopedia/wisconsin-state-laws-affecting-tenants-domestic-violence-situations.html

 

[LdiJ]

Regarding your first question:
Is HE on the lease? Even if he isn't, you still likely have to follow the law to evict him. He hasn't been convicted of anything: at this point, you have accused him and been provided a restraining order.

http://wilawlibrary.gov/topics/landlord.php

http://www.nolo.com/legal-encyclopedia/wisconsin-state-laws-affecting-tenants-domestic-violence-situations.html

She doesn't have to evict him if he is under a restraining order. He is restrained from her residence.

 

[snowy5741]

Yes. His name is on the lease...but I just figured that if I return, he cant come back.Which leads me to a seperate issue. He will probably run to the landlord. Can he ask the landlord to remove me from the lease? If not...could he ask to draw up a new lease essentially blowing all of this out of the water? Can the landlord tell us to leave?

 

[Proserpina]

She doesn't have to evict him if he is under a restraining order. He is restrained from her residence.

Which of course isn't her actual residence per the original post.

While I sympathize with the OP, this does NOT give her the right to obtain a restraining order containing false information, which effectively acts as an eviction.


Is Dad a jerk? Sounds like it.
Is he a monster? Maybe.
Does that mean Mom can lie to obtain that restraining order?

I can see this backfiring.

 

[Silverplum]

She doesn't have to evict him if he is under a restraining order. He is restrained from her residence.

That doesn't give her the right to do as she pleases, particularly not with his belongings. It doesn't mean he's guilty. It doesn't mean it's actually her residence.

 

[Silverplum]

Yes. His name is on the lease...but I just figured that if I return, he cant come back.Which leads me to a seperate issue. He will probably run to the landlord. Can he ask the landlord to remove me from the lease? If not...could he ask to draw up a new lease essentially blowing all of this out of the water? Can the landlord tell us to leave?

That's covered in the links I gave you to read and educate yourself.

 

[Silverplum]

The RO is temporary, correct?

No charges have been filed by the DA?

 

[single317dad]

In most states, the judge issuing the restraining order can grant the petitioner exclusive use of the joint home. Did this happen in your case?

http://www.doj.state.wi.us/ocvs/victim-rights/restraining-orders

http://wicourts.gov/forms1/circuit/ccform.jsp?FormName=&FormNumber=&beg_date=&end_date=&StatuteCite=&Category=11&SubCat=Domestic%20Abuse%20Restraining%20Orders/Injunctions

There will be a hearing on the 4-year injunction within 14 days of the issuance of the TRO. I suggest you prepare your arguments for that hearing.

 

[Proserpina]

In most states, the judge issuing the restraining order can grant the petitioner exclusive use of the joint home. Did this happen in your case?

http://www.doj.state.wi.us/ocvs/victim-rights/restraining-orders

http://wicourts.gov/forms1/circuit/ccform.jsp?FormName=&FormNumber=&beg_date=&end_date=&StatuteCite=&Category=11&SubCat=Domestic%20Abuse%20Restraining%20Orders/Injunctions

There will be a hearing on the 4-year injunction within 14 days of the issuance of the TRO. I suggest you prepare your arguments for that hearing.

She doesn't live there.

That's the point - she's using that address, yet she's not actually living there.

Any more suggestions?

 

[single317dad]

She doesn't live there.

That's the point - she's using that address, yet she's not actually living there.

Any more suggestions?

Just providing the information. She has a TRO. She'll have an injunction hearing. That means this whole plan will be hatched out right in front of a judge.

If I were OP, I'd be looking to move somewhere that my violent ex didn't know where I lived, not the rental we shared. That may be difficult since OP's name is already on one lease, but Wisconsin Act 184 addresses that situation:

http://docs.legis.wisconsin.gov/2013/related/acts/184

 

[Ohiogal]

Yes. His name is on the lease...but I just figured that if I return, he cant come back.Which leads me to a seperate issue. He will probably run to the landlord. Can he ask the landlord to remove me from the lease? If not...could he ask to draw up a new lease essentially blowing all of this out of the water? Can the landlord tell us to leave?

Why did you mislead the court? Where have you been living for the last two months? The landlord could evict you. That is a possibility. The other issue is you left a few months ago and now want to force him out. The court may not take kindly to that.

 

[LdiJ]

Why did you mislead the court? Where have you been living for the last two months? The landlord could evict you. That is a possibility. The other issue is you left a few months ago and now want to force him out. The court may not take kindly to that.

The court may also not take too kindly how he kicked her and the children out of the marital home.

 

[Proserpina]

The court may also not take too kindly how he kicked her and the children out of the marital home.

When Dad refutes that by saying he begged her to stay but she left and took his children anyway...

He doesn't have to prove a negative.

And seriously - I am concerned for the children. But there are ways of doing things, and then there are ways of doing thingsl

Credibility is critical here.