By Roxanne Hernandez, Senior Attorney
Note: The below preface was originally shared in September 2023 and serves as the back story for the recent update of the case.
Preface
Marco (fictitious name) came to us with a domestic violence restraining order (DVRO) in place to protect him and his son from Cecilia (fictitious name). He needed our assistance with a change of custody as Cecilia had managed to get temporary emergency child custody orders over the child.
Through our research and unbeknownst to him, we learned Cecilia had managed to conceal the existence of the DVRO against her from the court and was granted Temporary Emergency Child Custody Orders alleging Marco had physically abused the boy. The Investigator assigned to do an emergency custody investigation failed to look at Marco’s evidence, which included photos of the same injuries to the son, which postdated Cecilia’s photos, and which he alleged occurred while the boy was in Cecilia’s care. In essence, Marco needed our assistance with modifying the visitation orders based on the same injuries alleged by Cecilia.
I represented Marco less than 24 hours after learning of the emergency hearing in which the investigator testified. Upon my inquiry of the investigator’s failure to look at Marco’s evidence, the court determined there was no emergency, suspended the emergency orders placing the child with Cecilia, and reinstated the 2021 DVRO granting Marco sole physical custody of the boy and visitation to Cecilia.
The child was ordered returned to Marco by 8 am the following morning. It was a victory for Marco, but we had more to do.
Update: The Story Continues
After restoring custody of the son to Marco, we returned to court and the judge ordered a full Child Custody Investigation (CCI) to be conducted, which is more thorough than an emergency CCI. However, because the son is four years old, he is a year too young to be interviewed by the court investigator and the case had to continue based on Marco’s word against Cecilia’s word.
In a previous hearing, I proved one of the main injuries, a burn to the minor’s arm, occurred while in Cecilia’s care and not in Marco’s. I was able to do this based on Cecilia’s own photos which showed the boy had the injury at 9:45 am on a Sunday morning when he was in her care and Marco’s photos of the same injury which were taken at 6:03 pm Sunday evening when the child was returned to him wearing long sleeves.
Our position has been that Cecilia was causing or allowing someone in her home to cause the injuries to the child to build her case against Marco and to change custody; however, at that time the court did not find a reason to implement supervised visits for her although the judge indicated he was suspicious about the injuries.
At a subsequent hearing, we presented two additional injuries, bruises, sustained by the child in which Cecila again presented photos taken while the minor was in her care, while Marco had photos of the minor free of bruises before visiting with Cecilia and photos of the minor with the bruises when returned from his visit with Cecilia.
I argued that this was the same thing Cecilia did previously and then I reintroduced photos of the injuries to remind the court and I argued public policy requires the court to put the health, safety, and welfare of the minor child above the public policy for frequent and continuing contact between the children and both parents. I also reminded the court that Cecilia has a DVRO against her for physical violence, and pointed out several inconsistent statements by her to convince the court her testimony could not be believed, and the court should this time err on the side of protecting the minor child from the continuous unexplained injuries.
The court expressed concern with the child’s behavior towards his mother—cursing and hitting Cecilia. In response, I argued that visitation during therapeutic settings would serve not only to protect the minor from Cecilia, but also address his behavior toward her, which the minor’s therapist (whom I had to subpoena to testify) mentioned was the basis for her involvement with this family. The argument was “well taken” by the court. After five appearances, the court finally suspended Cecilia’s weekend visits and implemented professionally monitored visits two times per week for up to two hours and during joint therapy sessions only.
Additionally, we successfully renewed Marco’s protection from Cecilia by extending his DVRO for five more years. We were also successful in having Cecilia’s DVRO request against Marco dismissed, which was based on the same falsified allegations of child abuse.
In the end, Marco and his son received critical assistance from us with an ex parte hearing (minor returned to father), with Cecilia’s request for DVRO against Marco (which was dismissed), with the renewal of the DVRO against Cecilia (which was granted), and with modified visitation through the RFO Cecilia filed (modified to professionally monitored visits). Marco is now in a position to move forward with his life and focus unhindered on the wellbeing of his son.
