Can I Get a Different Judge if I Don't Think the Court's Decision Was Fair

Hello everyone, and thank you in advance for any input and advice.

My question involves restraining orders in the State of: New York

I am a considerable sized male, medium build.

I also have a spouse with alcohol abuse issues. Taking anti-depressants with alcohol, and not coming home until whenever.

My wife has abused me (as I refuse to fight back), and also has abused the pets. Up until now, I never reported it. But things seem to be escalating. And my fear is that the children are next on the list.

I applied for a restraining order against my wife (a little more than half my weight and about a foot shorter than I). I listed the incidents involving myself as well as the pets. I also listed that my wife may be suicidal and may harm the children. Her words (in a text).

When I walked into the courtroom, I was sworn in, and after going over the 'name, address' stuff, the judge asked how tall I was and my weight, and I answered. He then asked how tall and weight my wife was. And I answered.

"Mr. Roy, you want me to believe that you are afraid of someone half your size ?"
"Your honor, I am concerned about my children at this point. And I have never or would never put a hand on my wife in anger."

This judge had his mind made up as soon as I walked into the courtroom.

I'm wondering if I can go back and see another judge ?

Is this possible ?

Any input and advice is appreciated.

These were old instances that you were requesting a current restraining order for. Nothing recent had happened.

How tall are you and how much do you weigh? The issue isn't your size, in this case, it's that there was no recent events.

What is a "Be Nice" order btw?

It appears your recourse is to leave before something happens and you become a victim of the Federal gov'ts "prosecute the male" monetary police incentive program.

if you were granted this order, who was going to move out of the house; you or her?

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Quoting SuperPop

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These were old instances that you were requesting a current restraining order for. Nothing recent had happened.

How tall are you and how much do you weigh? The issue isn't your size, in this case, it's that there was no recent events.

What is a "Be Nice" order btw?

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6'4", about 250 lbs. Spouse is 5'5", around 130 lbs.

It's not a vacate order. She stays in the house. And we be civil to each other.

So at this point, this paper does nothing to protect my children.

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Quoting jk

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if you were granted this order, who was going to move out of the house; you or her?

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Her.

I am currently the primary caregiver for the children.

I am a stay-at-home dad. Due to medical issues.

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Quoting Disagreeable

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It appears your recourse is to leave before something happens and you become a victim of the Federal gov'ts "prosecute the male" monetary police incentive program.

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If it were just us, I would have been gone a while ago.

My children are my concern at this point.

But I don't know where to go from here.

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I am having divorce papers served this week.

I was trying to coincide the restraining order with the divorce papers.

Because I don't know what she will do when she is served.

Take them with you.

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Quoting Disagreeable

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Take them with you.

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You're right.

I was hoping to have her removed (vacate order) so the kids were not uprooted.

This judge just burns my britches. If he had said that 'because there are no recent events', I could have gone with that.

His big thing was all about my size versus her size.

But push comes to shove, we are leaving.

Any other suggestions and advice are helpful.

If you leave she will get primary access to the home, she will request that the children are returned to 'the only home they've ever known' and depending on age 'so that they can continue in school where they have built friendships and a relationship with the community'

You will end up with a temporary order for EOW and she will have time to establish primary custody through status quo as some of these divorce/custody cases can take up to 2 years to complete.

The FIRST RULE of divorce, don't move out!

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Quoting SuperPop

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If you leave she will get primary access to the home, she will request that the children are returned to 'the only home they've ever known' and depending on age 'so that they can continue in school where they have built friendships and a relationship with the community'

You will end up with a temporary order for EOW and she will have time to establish primary custody through status quo as some of these divorce/custody cases can take up to 2 years to complete.

The FIRST RULE of divorce, don't move out!

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Ages are 5,9, and 11. So yeah, that's what she'd come back with.

And that's my other concern. Is taking them out of harm's way, and having that come back to bite me.

But she's never home. Work is one thing, but this constantly being out with friends at all hours of the day and night. I think (barring sleep) she's logged in roughly 20 hours with the kids this MONTH !!!

Who takes care of the kids ? ME !!

(Sigh)

So. How do I get her out ?

EDIT:
The house is in my name only. But we purchased it during the marriage.
Don't know if that makes a difference.

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Quoting SuperPop

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If you leave she will get primary access to the home, she will request that the children are returned to 'the only home they've ever known' and depending on age 'so that they can continue in school where they have built friendships and a relationship with the community'

You will end up with a temporary order for EOW and she will have time to establish primary custody through status quo as some of these divorce/custody cases can take up to 2 years to complete.

The FIRST RULE of divorce, don't move out!

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Dad is a stay-at-home parent. Dad is the primary caregiver. Leaving the home WILL NOT change that unless he waits too long to file. Status quo is actually in his favor at this moment.

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Quoting george roy

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Ages are 5,9, and 11. So yeah, that's what she'd come back with.

And that's my other concern. Is taking them out of harm's way, and having that come back to bite me.

But she's never home. Work is one thing, but this constantly being out with friends at all hours of the day and night. I think (barring sleep) she's logged in roughly 20 hours with the kids this MONTH !!!

Who takes care of the kids ? ME !!

(Sigh)

So. How do I get her out ?

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You don't. What you do is file ASAP. You are the primary caregiver; in this situation that shouldn't change simply because you live somewhere else. You need to focus on the fact that you ARE the primary caregiver.

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Quoting Dogmatique

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Dad is a stay-at-home parent. Dad is the primary caregiver. Leaving the home WILL NOT change that unless he waits too long to file. Status quo is actually in his favor at this moment.

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You don't. What you do is file ASAP. You are the primary caregiver; in this situation that shouldn't change simply because you live somewhere else. You need to focus on the fact that you ARE the primary caregiver.

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I signed the divorce papers today to have her served later this week. The paralegal will call me tomorrow with a more accurate time frame.

Maybe she'll get the papers, come home during the day to grab a bunch of clothes, and be gone for good when the kids and I get home.

I am petitioning for exclusive use of the home.

I will ask the paralegal tomorrow, but does that (exclusive use) take effect when she is served ?

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Quoting Dogmatique

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Dad is a stay-at-home parent. Dad is the primary caregiver. Leaving the home WILL NOT change that unless he waits too long to file. Status quo is actually in his favor at this moment.

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You don't. What you do is file ASAP. You are the primary caregiver; in this situation that shouldn't change simply because you live somewhere else. You need to focus on the fact that you ARE the primary caregiver.

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A recent visitation case i was involved in was delayed 4 times, once by one lawyer and 3 times by another and that was just a modification of visitation. Just under a year start to finish (i think it was 10 months)...That was in NY.

If the first day in court the mother will request that they are returned home, at the very least, for school. The judge will grant that and a temporary custody schedule will be drawn up, you MAY get every weekend, maybe Every Other weekend, because you moved out. The next court date will be 2 months down the line, mom's lawyer, if any good, will ask for a continence to (get financial documents in order), so another 2 months, then you go to court, you not going to agree at that point, the judge will order you two to mediation. 3 months later back in court because you couldn't agree in mediation. Trial date is set 6 months later, one more continuence by mom's lawyer.....This is now 15 months later mom has had primary custody, she has set status quo.

You are now an EOW daddy.

DON'T MOVE OUT and i hope you are carrying your tape recorder around with you!

This women is dangerous, she WILL attack you again, put the police on speed dial! When she does, press charges and file again.

How do I get her out, then ?

Does my name only on the mortgage and deed make a difference ?

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Quoting george roy

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I am having divorce papers served this week.

I was trying to coincide the restraining order with the divorce papers.

Because I don't know what she will do when she is served.

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if something happens, you call the police, before it gets out of hand.


in your divorce, did you ask for temporary possession of the marital home? temp custody of the children?

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Quoting george roy

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Does my name only on the mortgage and deed make a difference ?

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at this point; not one bit. It is the marital home and until the divorce court orders anything otherwise, she is just as entitled to live there as you.

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Quoting jk

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if something happens, you call the police, before it gets out of hand.

in your divorce, did you ask for temporary possession of the marital home? temp custody of the children?

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at this point; not one bit. It is the marital home and until the divorce court orders anything otherwise, she is just as entitled to live there as you.

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Yes, I did ask for temporary possession of both children and home.

Is that effective when she is served ?

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Quoting SuperPop

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A recent visitation case i was involved in was delayed 4 times, once by one lawyer and 3 times by another and that was just a modification of visitation. Just under a year start to finish (i think it was 10 months)...That was in NY.

If the first day in court the mother will request that they are returned home, at the very least, for school. The judge will grant that and a temporary custody schedule will be drawn up, you MAY get every weekend, maybe Every Other weekend, because you moved out. The next court date will be 2 months down the line, mom's lawyer, if any good, will ask for a continence to (get financial documents in order), so another 2 months, then you go to court, you not going to agree at that point, the judge will order you two to mediation. 3 months later back in court because you couldn't agree in mediation. Trial date is set 6 months later, one more continuence by mom's lawyer.....This is now 15 months later mom has had primary custody, she has set status quo.

You are now an EOW daddy.

DON'T MOVE OUT and i hope you are carrying your tape recorder around with you!

This women is dangerous, she WILL attack you again, put the police on speed dial! When she does, press charges and file again.

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Telling him it's a definite "no" isn't helping him. I know that's often the party line, but sometimes it's just not that simple.

This would be one of those times. And seriously, you cannot predict what a judge will do in this case. Specially if Dad files for temp custody and the kids' schooling wouldn't be negatively affected.

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And looky here - Dad has already done the smart thing and requested use of the family home and custody of the kids. Go Dad! :D

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Quoting george roy

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Yes, I did ask for temporary possession of both children and home.

Is that effective when she is served ?

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Do you believe that a judge will give you possession of a home you don't live in? Take possession away from your STBX who has no apartment, but give it to you, who does have another place to stay already setup and available? Making her homeless, but giving you two living arrangements?

What about the children? Where are you moving to? Are you going to be able to find a place in the same town, county, school district? Why should they move out of their home(that he will be giving to your stbx if you move out)?

I'm sorry i'm being harsh George, honestly, i'm scared for you. I don't want you to make a big mistake!

You WILL get another chance to file a DV charge against your STBX, just wait it out, don't move out.

I have no idea why you're so adamant that Mom will likely win this. Even if he's moved out (and I'd bet he'll say it's temporary), he can indeed request exclusive use of the family home based solely on the fact that he's been the primary caregiver and the kids live there.

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Quoting Dogmatique

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I have no idea why you're so adamant that Mom will likely win this. Even if he's moved out (and I'd bet he'll say it's temporary), he can indeed request exclusive use of the family home based solely on the fact that he's been the primary caregiver and the kids live there.

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NY is not father friendly

Yet there are CPs who are male. Check "down the street" if you already haven't, using that moniker.

OP also has a HUGE plus on his side - the deed is in his name only.

Bye bye Mom!

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(In other words, the kids aren't moving anyway. Mom is moving out though...)

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Quoting SuperPop

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Do you believe that a judge will give you possession of a home you don't live in? Take possession away from your STBX who has no apartment, but give it to you, who does have another place to stay already setup and available? Making her homeless, but giving you two living arrangements?

What about the children? Where are you moving to? Are you going to be able to find a place in the same town, county, school district? Why should they move out of their home(that he will be giving to your stbx if you move out)?

I'm sorry i'm being harsh George, honestly, i'm scared for you. I don't want you to make a big mistake!

You WILL get another chance to file a DV charge against your STBX, just wait it out, don't move out.

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I think that it would greatly hinder my chances of exclusive use if I move out (with the kids). But then it might also depend on the circumstances of the moving out.

The place in mind is still close enough for school.

But the above is only in a case where I have no other choice.

It's not my intention to move out.

And I think you're right. I'll get another shot at it. :)

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Quoting Dogmatique

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Yet there are CPs who are male. Check "down the street" if you already haven't, using that moniker.

OP also has a HUGE plus on his side - the deed is in his name only.

Bye bye Mom!

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(In other words, the kids aren't moving anyway. Mom is moving out though...)

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I don't know about mom moving out, but when property division happens the deed in his name will be a plus. He may not lose the whole house, she just may have to 'buy out' his half while he lives in a garage/studio apartment so he can afford the 29%, before taxes(after FICA), child support.

I do know some custodial dad's in staten island. Great guys, strange, covered in tattoos and....from staten island...But they are amazing dad's

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Quoting Dogmatique

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Yet there are CPs who are male. Check "down the street" if you already haven't, using that moniker.

OP also has a HUGE plus on his side - the deed is in his name only.

Bye bye Mom!

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(In other words, the kids aren't moving anyway. Mom is moving out though...)

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Oooohhhh

Tell me more.

The house was purchased during the marriage.

But her credit was (is) lousy. I would have been paying at LEAST another 2% in interest, if not 3%.

You need to file and request exclusive use of the marital home based upon you being the primary caregiver. Submit a parenting plan and request child support from Mom at the same time.

Now, in terms of finances, Mom is entitled to half of the equity accrued during the marriage.

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Quoting SuperPop

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... DON'T MOVE OUT and i hope you are carrying your tape recorder around with you!

This women is dangerous, she WILL attack you again, put the police on speed dial! When she does, press charges and file again.

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No, I won't be moving out.

Yes, I carry my tape recorder everywhere now.

As far as attacking, I just need to be ready for it.

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Quoting SuperPop

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I do know some custodial dad's in staten island. Great guys, strange, covered in tattoos and....from staten island...But they are amazing dad's

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Thankfully, the times during which the Mothers always got custody are almost over. Having a uterus is no longer a guarantee - and to quote dear Martha "That's a good thing".

:D

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Quoting Dogmatique

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Thankfully, the times during which the Mothers always got custody are almost over. Having a uterus is no longer a guarantee - and to quote dear Martha "That's a good thing".

:D

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It's not a given anymore, but the recent stats i've read say 85% mothers get custody...I'm still bias on this subject and maybe a little bitter still, it's best for me to make no comment at all....Is it fair if i just say QUOTED FOR TRUTH!

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You know i have a friend who's just starting this process right now. No paper work was filed last time i talked to him, but he's also a stay at home dad with a 10yr old an 7yr old and (i think) a 3yr old, living in NY. He filed with the police a month or so back because his wife attacked him. This just clicked for me. The only difference is, he's NOT 6'4 250lbs, he's maybe 5'9 185lbs, but his wife is MUCH smaller then him, she's tiny 5' 105lbs, maybe.

I've known him since elementary school, so i'm pretty sure he wouldn't use the name George Roy, BUT my PM's are turned on here, if you are him, send me a PM.

(You might want to find a study which considers the times a father actually files... ;) )

I'm just wondering.

Can I go down to the court and reapply for an RO ? And hope to get another judge ?

No.