Motion to Vacate Protective Order

[bigbird74]

What is the name of your state (only U.S. law)? Texas

As I have mentioned before, I kicked my STBX in the shin, he filed assault charges and obtained a protective order against me (all out of spite, I'm sure). At the hearing the judge made it clear to both of us, that it was just as applicable to him (as far as the staying 200 yards away part) as it was to me.

Since the order has been in place he has been to my home 3 times. I have been to his work once and his home once. All of this done for the exchange of our son for visitation.

Since basically neither one of us is following it, and since he was the last to visit since I thought of this, can I file a Motion to Vacate the protective order? Especially since he's the one that requested it and has actually violated the most times?

Thanks!

 

[mistoffolees]

What is the name of your state (only U.S. law)? Texas

As I have mentioned before, I kicked my STBX in the shin, he filed assault charges and obtained a protective order against me (all out of spite, I'm sure). At the hearing the judge made it clear to both of us, that it was just as applicable to him (as far as the staying 200 yards away part) as it was to me.

Since the order has been in place he has been to my home 3 times. I have been to his work once and his home once. All of this done for the exchange of our son for visitation.

Since basically neither one of us is following it, and since he was the last to visit since I thought of this, can I file a Motion to Vacate the protective order? Especially since he's the one that requested it and has actually violated the most times?

Thanks!

I believe that since it's his protective order that he'd need to be the one to file a motion to vacate. I think you'd need something different, but I'm sure someone else will provide the legal details.

My concern is more that you're clearly in violation of a court order. It's not a recommendation, it's an ORDER. The fact that he has violated it, as well, won't help you very much if he calls the police to have you arrested for violating a court order. It then becomes your word against his as to whether he violated it earlier, but the police will be there to see that you are violating it NOW.

Find some way to get the order removed, if possible, but until then, FOLLOW IT.

 

[Ohiogal]

What is the name of your state (only U.S. law)? Texas

As I have mentioned before, I kicked my STBX in the shin, he filed assault charges and obtained a protective order against me (all out of spite, I'm sure).

Out of spite? How about out of the fact that you battered him. You broke the law and committed a crime.

At the hearing the judge made it clear to both of us, that it was just as applicable to him (as far as the staying 200 yards away part) as it was to me.

Okay.

Since the order has been in place he has been to my home 3 times. I have been to his work once and his home once. All of this done for the exchange of our son for visitation.

Did the restraining order allow for exchanges of the child? If not then did a subsequent order allow for that?

Since basically neither one of us is following it, and since he was the last to visit since I thought of this, can I file a Motion to Vacate the protective order? Especially since he's the one that requested it and has actually violated the most times?

What exactly does the restraining order state -- word for word. Not what you remember the judge saying but what was actually written in the ORDER.

 

[bigbird74]

Yes, he did it out of spite. I caught him cheating on me with a 19 year old trailer park .., leaving me with 3 kids, a mountain of debt and not a glance back. When he filed it, the courts charged me over $500 for his protective order, which I still haven't paid, and won't until they threaten to throw me in jail over it and maybe not even then (I think I'd rather sit in jail until it's paid, than take a dime that should help my kids). So he was aware that that would affect me and the kids financially as his child support doesn't even cover the cost of our son's child care much less any further needs. Oh yeah, and this was after he wrote $500 in hot checks on our closed joint account. I have refused to pay those as well. I didn't write them and have video captures of the surveillance video that shows him writing them.

And he was FAR from battered. He deserved Lorena Bobbitt justice more than a kick in the shin but that's what he got. He should count his blessings that I was so shocked by his betrayal that I didn't think of that before I confronted him with his affair and he left. And I never denied the "crime" that was committed. I even told the detective when he called me about it....

No, the protective order says nothing about the exchange of our son. As a matter of fact, since he still has not presented me with the final decree, we're still under the General Standing Orders which state he can not have overnight visitations as long as he's living with a "romantic partner" (even applies if his romantic partner is his daughter's age). I don't have it with me but it said I had to stay 200 yards away from him, his home, work or anybody he included, which was his teenage trailer trash, her 5 year old daughter and his 8 year old son he has custody of. Same for him, he has to stay away from me, my home, my work. However, I had to buy a car as the one I had was in his name, and once when we went to court, I was in my car making a phone call, and they came out of the courthouse and in a huge parking lot full of cars, he knew which one was mine because he sent the Bailiff out to run me off (this was the same day he was awarded the protective order). So unless he'd been "stalking" me and coming to my home previously, he should not have known what kind of car I was in.

The point is, he asked for this "protection" and has violated it. I guess next time he thinks he wants to see his son, I should have the police waiting.

 

[Proserpina]

Yes, he did it out of spite. I caught him cheating on me with a 19 year old trailer park wh*re, leaving me with 3 kids, a mountain of debt and not a glance back.

None of which justifies striking him.

When he filed it, the courts charged me over $500 for his protective order, which I still haven't paid, and won't until they threaten to throw me in jail over it and maybe not even then (I think I'd rather sit in jail until it's paid, than take a dime that should help my kids).

Come on - be a responsible parent. That's NOT going to help your children, is it?

So he was aware that that would affect me and the kids financially as his child support doesn't even cover the cost of our son's child care much less any further needs. Oh yeah, and this was after he wrote $500 in hot checks on our closed joint account. I have refused to pay those as well. I didn't write them and have video captures of the surveillance video that shows him writing them.

Did you report this to the police?

And he was FAR from battered. He deserved Lorena Bobbitt justice more than a kick in the shin but that's what he got. He should count his blessings that I was so shocked by his betrayal that I didn't think of that before I confronted him with his affair and he left. And I never denied the "crime" that was committed. I even told the detective when he called me about it.

I'm going to leave this one for someone else to answer. I'm speechless.

No, the protective order says nothing about the exchange of our son. As a matter of fact, since he still has not presented me with the final decree, we're still under the General Standing Orders which state he can not have overnight visitations as long as he's living with a "romantic partner" (even applies if his romantic partner is his daughter's age). I don't have it with me but it said I had to stay 200 yards away from him, his home, work or anybody he included, which was his teenage trailer trash, her 5 year old daughter and his 8 year old son he has custody of. Same for him, he has to stay away from me, my home, my work. However, I had to buy a car as the one I had was in his name, and once when we went to court, I was in my car making a phone call, and they came out of the courthouse and in a huge parking lot full of cars, he knew which one was mine because he sent the Bailiff out to run me off (this was the same day he was awarded the protective order). So unless he'd been "stalking" me and coming to my home previously, he should not have known what kind of car I was in.

The point is, he asked for this "protection" and has violated it. I guess next time he thinks he wants to see his son, I should have the police waiting.

You need to get yourself and your son into counseling. Seriously. This situation is so toxic it's impossible for it NOT to be affecting your son negatively.

 

[bigbird74]

Yes, I was wrong to have kicked him. Still believe he deserved more, but that's my problem, as we don't have the "eye for an eye" laws these days.

I'm in counseling, thank you very much. Per the protective order, no less. As for my son, I agree, however there are co-pays which I don't believe I would ever see reimbursement for, as he still hasn't paid his half of the bill when our son had an accident 3 months ago. And due to my current financial situation, I can not take on any more debt. Especially since after one visit, my son came home and simulated a sex act and said he saw it "at daddy's girlfriend's house". He's 4, and for him to have seen something like that, and them not to have taken measures to prevent him from see it, is child abuse to me.

The checks were on our closed joint account. I did file a forgery report with both TeleCheck and the police but since it was joint, closed or not, I am just as responsible for them.

I agree it's toxic on both sides and that's why I intend to never have contact with him again. And how can any of that have a good effect on our son? As far as he's concerned it's a lose/lose situation and I'm damned if I do and damned if I don't.

 

[Proserpina]

Yes, I was wrong to have kicked him. Still believe he deserved more, but that's my problem, as we don't have the "eye for an eye" laws these days.

I'm in counseling, thank you very much. Per the protective order, no less. As for my son, I agree, however there are co-pays which I don't believe I would ever see reimbursement for, as he still hasn't paid his half of the bill when our son had an accident 3 months ago. And due to my current financial situation, I can not take on any more debt. Especially since after one visit, my son came home and simulated a sex act and said he saw it "at daddy's girlfriend's house". He's 4, and for him to have seen something like that, and them not to have taken measures to prevent him from see it, is child abuse to me.

Yet you won't get him into counseling? Because you won't see reimbursement for the co-pays?

 

[dalejrfan8]

WOW....glad you are in counseling, sounds like some unresolved anger....
I've been through some unbelievable stuff myself.

I'm in Illinois and I've had to get two POs and dropped one of them even though it was extended 2 yrs and considered a final order. The one still stands after he wore an ankle bracelet for 8 mths as well. I won't drop it.
Unless the laws are different he is the only one to be able to drop the order since he got it originally.
Yes it is serious he could have you arrested as well. You shouldn't be meeting at all. No I don't think you could have the police waiting when he shows up as you will have talked on the phone making it a point to meet, which at least here would also violate the PO.

 

[bigbird74]

Actually, Friday he just showed up. The only way I have of contacting him is through his email at his work, he's changed his cell# (not that I ever harassed him on his old one) has the receptionist at his work screen his calls, etc. I had sent him an email after the "incident" with my son telling him that in light of that, he would not be allowed to see him again, unless it was supervised. This to his work email. But Friday when he rang my doorbell, he now claims not to have work email that he never got any of the ones I sent. Funny though, my Outlook shows that if they're not read, the expire after so many days and some did, but some did not, so they got read.

So for now, I guess I can't get the protective order dropped, and if he wishes to enforce his visitation, he'll have to sue me in court for contempt, then I will bring up the "incident" and my son will get to be put through all that fun stuff the courts put kids through. That was the reason I didn't file child abuse charges initially, as I did not intend for my son to ever be in that situation again, and to keep him from the stresses the courts would put on him. He had already begun wetting the bed and having daytime accidents since his father walked out on us. Why add to his emotional turmoil?

I did try to allow them to continue their relationship after our separation but it just seems like everytime I let him go with his father, something surfaces that I would rather not have my son be a party to. Example, EVERY time he came home, he tells me that "daddy and his girlfriend call mommy bad words". And I do not pump him for information, this comes out freely and un-coerced. Also, he has his new GF with him Friday and when I told him he wasn't taking our son, she starts yelling out the car window, "just come on, don't stand there and argue, let's just go" and he left! I'm sorry but if the situation was reversed and I wanted to see my son, I'd have told her to shut up that I had a court order to see him and I was going to stand there until I got him. Not him, he tucked his tail between his legs and ran. But I guess since he was so abused by me, he had reason to fear for his safety and his son just wasn't that important to him to risk his safety.

 

[Ohiogal]

Yes, he did it out of spite. I caught him cheating on me with a 19 year old trailer park wh*re, leaving me with 3 kids, a mountain of debt and not a glance back. When he filed it, the courts charged me over $500 for his protective order, which I still haven't paid, and won't until they threaten to throw me in jail over it and maybe not even then (I think I'd rather sit in jail until it's paid, than take a dime that should help my kids).

Cool. And when you are in jail, dad can file for emergency custody and receive full custody so that your children can live with him and his 19 year old. Isn't it great how your anger works?

So he was aware that that would affect me and the kids financially as his child support doesn't even cover the cost of our son's child care much less any further needs.

Oh well. Maybe you need to get out and work then.

Oh yeah, and this was after he wrote $500 in hot checks on our closed joint account. I have refused to pay those as well. I didn't write them and have video captures of the surveillance video that shows him writing them.

Okay. And? That has nothing to do with anything. What did the divorce decree state about that marital debt?

And he was FAR from battered. He deserved Lorena Bobbitt justice more than a kick in the shin but that's what he got. He should count his blessings that I was so shocked by his betrayal that I didn't think of that before I confronted him with his affair and he left. And I never denied the "crime" that was committed. I even told the detective when he called me about it that I thought he was a f*cking p*ssy and needed to grow some balls.

And maybe you need to grow up and mature a bit. Then sit in a jail cell until you take responsibility for your actions.

No, the protective order says nothing about the exchange of our son. As a matter of fact, since he still has not presented me with the final decree, we're still under the General Standing Orders which state he can not have overnight visitations as long as he's living with a "romantic partner" (even applies if his romantic partner is his daughter's age).

Seriously, your bitterness is going to destroy your children but I am sure you think it won't.

I don't have it with me but it said I had to stay 200 yards away from him, his home, work or anybody he included, which was his teenage trailer trash, her 5 year old daughter and his 8 year old son he has custody of.

Then it applies to you.

Same for him, he has to stay away from me, my home, my work. However, I had to buy a car as the one I had was in his name, and once when we went to court, I was in my car making a phone call, and they came out of the courthouse and in a huge parking lot full of cars, he knew which one was mine because he sent the Bailiff out to run me off (this was the same day he was awarded the protective order).

Really? it stated that he has to stay away from you? Or you just think so?

So unless he'd been "stalking" me and coming to my home previously, he should not have known what kind of car I was in.

Not necessarily. Because quite frankly the car was marital property. You said you assaulted your husband. Hence if you bought the car during the marriage, it is marital.

The point is, he asked for this "protection" and has violated it. I guess next time he thinks he wants to see his son, I should have the police waiting.

Some time in jail will do you good. Then you will end up having to ask dad for permission to see your child though you won't be able to because of the restraining order. Hence you just won't see your son anymore.

 

[Ohiogal]

Actually, Friday he just showed up. The only way I have of contacting him is through his email at his work, he's changed his cell# (not that I ever harassed him on his old one) has the receptionist at his work screen his calls, etc. I had sent him an email after the "incident" with my son telling him that in light of that, he would not be allowed to see him again, unless it was supervised.

Actually there is a court order that must be followed. YOU do not get to change that. Hope he files contempt against you.

This to his work email. But Friday when he rang my doorbell, he now claims not to have work email that he never got any of the ones I sent. Funny though, my Outlook shows that if they're not read, the expire after so many days and some did, but some did not, so they got read.

You assume they got read and you assume HE read them.

So for now, I guess I can't get the protective order dropped, and if he wishes to enforce his visitation, he'll have to sue me in court for contempt, then I will bring up the "incident" and my son will get to be put through all that fun stuff the courts put kids through.

You are a bitter pathetic abusive woman.

That was the reason I didn't file child abuse charges initially, as I did not intend for my son to ever be in that situation again, and to keep him from the stresses the courts would put on him.

Actually you have no evidence of anything.

He had already begun wetting the bed and having daytime accidents since his father walked out on us. Why add to his emotional turmoil?

Seriously? How do you think you ending up in jail is going to add to his turmoil?

I did try to allow them to continue their relationship after our separation but it just seems like everytime I let him go with his father, something surfaces that I would rather not have my son be a party to. Example, EVERY time he came home, he tells me that "daddy and his girlfriend call mommy bad words".

What is a bad word?

And I do not pump him for information, this comes out freely and un-coerced. Also, he has his new GF with him Friday and when I told him he wasn't taking our son, she starts yelling out the car window, "just come on, don't stand there and argue, let's just go" and he left! I'm sorry but if the situation was reversed and I wanted to see my son, I'd have told her to shut up that I had a court order to see him and I was going to stand there until I got him.

You are a twit.

Not him, he tucked his tail between his legs and ran.

Maybe he went to an attorney to sue you.

But I guess since he was so abused by me, he had reason to fear for his safety and his son just wasn't that important to him to risk his safety.

may you lose custody of your child and be reduced to ONLY supervised visits. All this and your child is not in counseling. How neglectful, pathetic, abusive and stupid you are.

 

[Proserpina]

So for now, I guess I can't get the protective order dropped, and if he wishes to enforce his visitation, he'll have to sue me in court for contempt, then I will bring up the "incident" and my son will get to be put through all that fun stuff the courts put kids through. That was the reason I didn't file child abuse charges initially, as I did not intend for my son to ever be in that situation again, and to keep him from the stresses the courts would put on him. He had already begun wetting the bed and having daytime accidents since his father walked out on us. Why add to his emotional turmoil?

Unfortunately what you're not seeing is that you're about equally responsible for this poor child's turmoil. And frankly the co-pay situation? That's an excuse. This child NEEDS counseling. Your refusal to have him in counseling is neglectful.

But I guess since he was so abused by me, he had reason to fear for his safety and his son just wasn't that important to him to risk his safety.

Dad did the RIGHT thing. You were being unreasonable and he chose to walk away rather than a) cause his child further upset and b) run the risk of you being violent - again.

 

[Proserpina]

So for now, I guess I can't get the protective order dropped, and if he wishes to enforce his visitation, he'll have to sue me in court for contempt, then I will bring up the "incident" and my son will get to be put through all that fun stuff the courts put kids through.

Lovely.

You're willing to make your child suffer because YOU are still pissed at Dad.

I hope you're a troll.

 

[bigbird74]

Trust me, he doesn't give a sh!t about his son, he's made that clear. If he did, then why did it take him 4 1/2 months to even try to see him again?

As for my children, the first two were from a very physically abusive relationship, that's why I am fully well aware of what I did to my Ex is a joke to be considered abuse. However, I fully take responsiblilty for it. Like I said, I have not once denied doing it, and when the charges come, I'm fully prepared to suffer my consequences. I'm not aware that he ever ended up in the hospital with a severe concussion from this abuse I perpetrated on him. Or had a miscarriage from my beatings. I have. I KNOW abuse and what it really means and you know what, probably 90% of my anger towards this comes from the fact that I did suffer serious abuse, couldn't get a permanent restraining order, and my abuser served less than 48 hours in any jail for it. Yet, this jack@ss gets a kick in the shin and goes crying to the police. So, no, seeing what happened to my abuser, I'm not really that concerned about getting anything more than some community service and a slap on the wrist. It was worth it. Oh yeah, and I've already signed a Power of Attorney giving my brother temporary guardianship of my children should anything happen to me. So if I sit in jail for a few days, by the time my Ex could get into court to challenge it, I'd be out and it would be a moot point.

And BTW, I have a job, pretty well paying, but not enough for a family of 4 on my own. Minimal child support from the recent ex and sporadic at best from the first (he's in the hole over $40k in child support but that's a whole other story).

Fine, he can have my 2002 Saturn I paid $1200 for and I'll take that nice new little Mitsubishi he's been wheeling around in since he got the car that he was driving, that was in my name, repo'd. Marital assets, right?

 

[mistoffolees]

I had sent him an email after the "incident" with my son telling him that in light of that, he would not be allowed to see him again, unless it was supervised.

Aside from all the good advice you got from Proserpina, you need to stop with the bitterness or it's going to come back and hurt you.

If there are temporary orders covering visitation, you can not overrule them. Once again, court orders are ORDERS, not requests. Even if there are no temporary orders, if you keep your child away from his father, that could hurt you badly when it comes to the final custody decision.

You really need to chill out and stop with the knee-jerk bitter responses. If you have something that bothers you, let the court deal with it. You shouldn't deal with it by ignoring court orders, kicking your husband, or keeping your child from seeing his father. If you can't follow that advice, you need counseling - badly.