What to do if I was coerced into giving custody of my children to my ex husband?

04/28/2009 - Category:Divorce - Child Custody - State: ALL #16255

Full Question:

A situation arised in that a parent had filed for protection order for a child against an ex's girlfriend. These occurred in two different counties. She was granted a temporary order in her county. Due to concern for the saftey of the child, she withheld visitation, as the girlfriend lived with the ex. He filed for contempt. While waiting for the final hearing on the protection order the contempt was heard in the other county. The judge refused to wait until the final hearing on the protection order, and told the mother if she did not accept what the father offered she would go to jail.
The mother also has a 2 year old child by another father, who works together with the other father in their legal battles. The father said he would drop the contempt charge if she dropped the order of protection. The mother knew if she did not do this she would go to jail and lose both the children. (father had tried several times in passed months to enforce jail order even with attempt to set her up). She did not want to agree to this request, her attorney encouraged her to do so in order to keep her out of jail. She felt she was failing her child, but realized the father was not going to stop until he got her into jail. Residential parent was also changed to the father, which then voided the use of jail time for any contempt in the future. Since getting residentual parenting he has withheld visitation, charged the mother with abuse and filed to remove all her parental rights. The child was withheld from the mother for over 2 months, she is not allow any phone contact with her, placed her in activities during her visitation times, and refuses to change times. The child voices fears of what will happen to her if she dosen't do what he says. The court is siding with the father aside from there being no evidence to his charges other than his said so. He is the only one who takes the child to talk to anyone about what is happening. My question is this: The agreement made to drop the order of protection and change residental parenting (they still are to be having shared parenting, although he claims full custody) was agreed upon due to the fact that she felt if she did not she would be going to jail, which was reinforced the day before by the attending judge, and she would lose both children, would then be considered a felony, and denied any parental rights to the children. She never believed the father would do what he did. She felt the abuse would stop when he had the child, as the child was used to abuse of the mother. Is this not a case where coercion was used against the mother to enter into an agreement that she would not other wise have done if not for the threat of going to jail, and losing both children. She had every reason to believe this would occur becasue of a earlier order of contempt that said this would be a outcome.
Also could someone else pick up the protection order that was for the child even thought the mother as it states 'agreed' to drop. Of course they have no knowledge of the conditions to which caused her to drop the order. What are our legal rights to protect these children, against a system that has been manipulated by a narrasistic socialpatic father. Are you aware of any cases where this has been used to revok the agreement and return custody back to the mother?

Answer:

I am unable to find case law involving these circumstances and revocation of  a custody order. I'm unsure what you mean by someone else picking up the protection order, but generally the request for such an order must be made by the person in need of protection or their legal representative. Modification of custody may be made when a party demonstrates a significant change in circumstances. Generally, custody is not revoked as a means of punishment to the parent, but is based upon the best interests of the child.


Factors the court will consider in determining the best interests of the child include: 1. The wishes of the child's parents 2. The wishes of the child 3. The child's interaction and interrelationship with parents, siblings and any other person who may significantly affect the child's best interest 4. The child's adjustment to home, school and community 5. The mental and physical health of all involved 6. Which parent is more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights 7. Whether either parent has failed to make all child support payments, including arrearages 8. Whether either parent has been convicted of a criminal offense which resulted in the child being an abused or neglected child 9. Whether the residential parent has continuously and willfully denied the other parent's right to parenting time in accordance with a court order 10. Whether either parent has established a residence or is planning to establish a residence outside of the State of Ohio.


The following is an Ohio statute:

 

2905.12 Coercion.

(A) No person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall do any of the following:

(1) Threaten to commit any offense;

(2) Utter or threaten any calumny against any person;

(3) Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, to damage any person’s personal or business repute, or to impair any person’s credit;

(4) Institute or threaten criminal proceedings against any person;

(5) Take, withhold, or threaten to take or withhold official action, or cause or threaten to cause official action to be taken or withheld.

(B) Divisions (A)(4) and (5) of this section shall not be construed to prohibit a prosecutor or court from doing any of the following in good faith and in the interests of justice:

(1) Offering or agreeing to grant, or granting immunity from prosecution pursuant to section 2945.44 of the Revised Code;

(2) In return for a plea of guilty to one or more offenses charged or to one or more other or lesser offenses, or in return for the testimony of the accused in a case to which the accused is not a party, offering or agreeing to dismiss, or dismissing one or more charges pending against an accused, or offering or agreeing to impose, or imposing a certain sentence or modification of sentence;

(3) Imposing a community control sanction on certain conditions, including without limitation requiring the offender to make restitution or redress to the victim of the offense.

(C) It is an affirmative defense to a charge under division (A)(3), (4), or (5) of this section that the actor’s conduct was a reasonable response to the circumstances that occasioned it, and that the actor’s purpose was limited to any of the following:

(1) Compelling another to refrain from misconduct or to desist from further misconduct;

(2) Preventing or redressing a wrong or injustice;

(3) Preventing another from taking action for which the actor reasonably believed the other person to be disqualified;

(4) Compelling another to take action that the actor reasonably believed the other person to be under a duty to take.

(D) Whoever violates this section is guilty of coercion, a misdemeanor of the second degree.

(E) As used in this section:

(1) “Threat” includes a direct threat and a threat by innuendo.

(2) “Community control sanction” has the same meaning as in section 2929.01 of the Revised Code.

Effective Date: 01-01-2004



Please see the information at the following links:

http://definitions.uslegal.com/a/abuse-of-process/
http://definitions.uslegal.com/c/coercion/
http://definitions.uslegal.com/m/modification-of-divorce-decree/
http://lawdigest.uslegal.com/family-laws/child-custody/
http://lawdigest.uslegal.com/family-laws/child-support-and-custody-overv iew/
http://definitions.uslegal.com/r/revocation/
http://cc.msnscache.com/cache.aspx?q=72935244240952&mkt=en-US〈=en-US &w=a2caeea4&FORM=CVRE2
http://cc.msnscache.com/cache.aspx?q=72935244240952&mkt=en-US<=en-US&w= a2caeea4&FORM=CVRE2>

04/28/2009 - Category: Child Custody - State: ALL #16255

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