they go right ahead good morning honors and ma'am please the court i and trial counsel are here today to represent brian evans this case began in july of two thousand and twenty my client had his kids the night before everything went down he had them for about six hours and took them to their mom's house to stay the night because he got called in to work my client is a military man and his schedule can be a tiny bit unpredictable six weeks prior to dissed night the day care that the children would attend the next day had been investigated for abusing the younger child who was three he has turned four now my client took the kids to their mom's house dropped them off had pleasant conversation and went to work nothing was a mess during the six hours he had his kids he played he had supper and he delivered three little swats of appropriate discipline to his younger son the st time the younger one threw a toy at his brother's face and made his brother cry the nd time the younger one was toilet training had been taken to the restroom didn't use the restroom and urinated in his pants several moments later the last time the boys were getting too active in the bath and he stopped them from getting too active and when the younger one wouldn't come down give one last little tap discipline can be appropriate and is allowed as a parenting decision i'm going to give you four reasons today why you should reverse in remand this case for further hearing the st one is every action prior to april two thousand nine hundred should be barred and should have been barred is older than time it is a foundation bedrock of our jurisprudence it would have barred under the domestic relations act any action prior to the parties divorce no matter how they got to the divorce it was bar you don't get a mulligan under the domestic violence act moreover any behavior that she could have complained of she could have complained of to her attorney at the time miss rice she had miss rice review the documents before she signed off on this an agreed divorce were all the parenting decisions were considered she didn't she didn't bring up anything and domestic abuse is part of the best interest question this that a trial court must consider when it's making a parenting decision she's also collaterally a stop from bringing up that which she could have brought up she had her opportunity to do so to allege that brian was mean and getting gauged in verbal spars with her that he had pushed her into a kitchen counter she didn't instead the trial court heard considerable evidence in the under the domestic violence act of what had happened prior to their divorce but their divorce is an absolute bar to evidence prior to april of two thousand and nineteen in hearing such evidence the trial court did find the teresa was an abused person and that the older child who was five at the time he is now six parton was also views because he had seen his parents and huge in a fight neither those findings should stand and nor would day in the domestic relations court which leads to my nd topic under supreme court rule my no three the local rules and the domestic violence act we are encouraged to find one child for a family it leads to more consistent rulings one judge knowing all the evidence not having to run down the hall and that stops people from forum shopping when the court engaged in its nd hearing to modify the order of protection there was a pending motion to modify parenting time and in fact the nd hearing in november was a motion to modify parenting time it was called decide and at that point it should have been crystal clear that the domestic violence judge needed to step off her bench and go see if the domestic relations judge could hear it it was called is an emergency motion no different than the august motion to stop parenting time it is simply improbable the judge campbell the domestic relations court had no hearings between august and november to hear even two hours of testimony about does family miss rice admitted on the record i came here because i could get a day not i knew i needed to go to the domestic relations court to modify parenting time accolade heavily now in the two g p cases strongly support this and the failure to consider it does require do novo review while the rules themselves  discretionary avoiding them is not and avoiding them and not walking down the hall to coordinate hearings requires this court to remand for a hearing before one judge who will hear all of the  the domestic violence act is one that is designed to prevent abuse well what is abuse parents have the right to discipline the children control their children because strong parents lead to strong children and children especially the ages of these children are tough three and five active little boys being raised in a divorced house but what the evidence shows is between april of two thousand and one team and and twenty these parents got along they they talked respectfully they spoke to each other several each and they generally parents it the parents is through the daycare being investigated for abusing these children i remember the daycare had just been investigated in the six weeks prior on the morning of the incident in question teresa the mother woke the children up help the younger one clean himself up helped him get dressed and took him to daycare where several hours later it was discovered that there were bruises on the child's buttocks and back no one at any point in time measured the hand sized to the bruises no one put their hand up against it and instead the c f s was called my client was adjudged guilty now there may be a question of whether this matter is moot my client is in the military and during the order of protection and afterwards he has been restricted from carrying his firearm meaning he is not ready and it prevents him from advancing in his military career and finally a finding of abuse is a best interest fac under the domestic violence act it allows you to skip straight to parenting without considering any of the other parenting questions whose main communicating who supports the relationship instead of just as  parent who is accused of abuse must not be allowed around his or her children or if they are it needs to be very controlled my client went from sixteen months of sharing time nearly equally and a great relationship with his children's mother to having nothing he couldn't hug his kids for christmas day he couldn't wish them happy birthday again x prevents a b s but parents are allowed to control their children so what is it of use when it comes to spanking well the child is injured if there's a reason for delivering spanking is excessive and was a child medically treated this child saw his physician the incident the physician didn't render any additional medical treatment was a tap on the rear end an appropriate punishment for hitting your brother in the face with a toy i'd say yes was or reason absolutely was this child injured no one testified the child refused to sit in his car seat was in discomfort over night and in fact when he was questioned he give up and he started to an order of protection once the water protection was in place my client saw his children for three hours which leads to my last point to modify a parenting plan and to restrict parenting time you have to look at the actions of the parent not what is necessarily in the children's best interest if it's a parent's behaviors that is causing the parenting time to be changed is a restriction if it's parenting time that needs to be changed because there are behaviors a and a change would be in the children's best interests with the focus on the best interest is a modification of parenting the november hearings were called as a modification of parenting on the three hours that brian had with his son three hours one time and it's the older child the child who did not get spanked who is now complaining of behaviors but they never tied those three hours to brian they brought in the child to vission for this the child in me complaining of ideas that were scary for a five year old suicidal ideation is what it's called he was trying to bite himself he wouldn't come down the child physician was called to the stand and the child's physician at st the treating psychiatrist said yes stopping visitation was a great idea until i got a better handle on what was going on he did not recommend the visitation remained suspended yet my client visitation with his older child is suspended and has remain suspended he has spent three hours with his trial since october three hours this really is a case about parenting and her parenting decisions and wanting to stop parenting that is evident from the pleadings in the file the whole call from august th and the nd pleading to modify parenting time about stopping bryant a strong parent from equally raising his children with his child's mother a position he had enjoyed for sixteen months the evidence was replete the true reese of stopped all information that she wouldn't communicate about the children's needs she had other people she could reach out  and instead all of it stopped and she has been the only parent in control under the divorce fact this would not be allowed it would look at the holistic picture of what was in the children's best interests children have to be controlled they have to be just one of the ways you bring up with rowdy kids no one matched these bruises and finally i can race to the casa and collateral estoppel would have prevented the exploration into the behavior some of which were prior to even one of the children being born and instead it would have focused on the children's best interest if this matter had been heard before the correct judge during using the correct mechanism to modify a parenting plan instead of using an order of protection to restrict and then remove all parenting from my client and for that reason i asked you reverse and remand with instructions that no evidence prior to the divorce be allowed and for rehearing and my client's parenting time in the interim pursuant to rule three hundred and sixty six be restored to that he can again enjoy being a parent to his two little boys thank you if you have any questions issues the family court judge who was judge campbell did not see either party and was not familiarized with either party simply reviewed the uncontested documentation and entered the  st and only trial court judge here any issues with regard to this family was judge purchase as a result of the emergency petition or an order of protection and both periods of both times each of them about thirty days after the other the matter was continued for the plenary hearing by agreement at no point in time in either that her testimony should not have been provided to the or it that she had experienced incidents of abuse by mr evans during their marriage again at times in front of the children would be against public policy i frankly virtually no time or anything to be adjusted or maneuvered with regard to the work schedule or again the best court to make a determination whether a modification of her own ruling would be judged purchase twenty and is that being heard by judge campbell or judge purchase that campbell ok which is the presiding judge in the family division or one of them  the under the domestic violence act the judge is to determine whether to grant a specific remedy the court shall consider relevant actors including your frequency severity pattern and consequences in the family or household member and the likelihood of danger of future abuse and trial court judge did in fact make those specific findings at the conclusion of the act over thirteen and held on saturdays i think it was about seven hours in eurasia during that time that is appropriate remedies under the statute and it was appropriately determined by the  based on the evidence that the court was presented and able to take into consideration with respect to the the nature of the evidence presented that led to the court's finding again parent in time of the father and i will note again that in both the original or initial plenary were protected proceeding as well as in the modification proceeding the court noted that it intended its order to be temporary in nature and noted that the intent was to be understanding was that the family court would be able to basically take over the matter and further as sas parenting issues on a on a you know with the older child who after the initial letter hearing and after the initial period a period in time with his father began to exhibit extreme changes in behavior of the view however the domestic violence act also tells a court to a apply the code of civil procedure and be dissolution act if children are involved both of those prevent the introduction of dissolution act makes it very very very clear the behaviors part the entry of the last order are not to be brought back up it instead asked what facts of a reason judicata says if you didn't get your chance you don't get it again later the jackson court wilson versus jackson also hold this rag he says domestic violence act cases are not places to change custody no one made a specific finding for the november order that the behaviors brian had exhibited in the three hours he had children for three hours is given seven he had to go to work somehow harm his children no one made the accusation and again appropriately combining the dissolution act and the domestic violence act the finding is not there and turning back to the last one the dissolution act is incorporated into the domestic violence act this means that the court egg cannot look at facts that had existed prior to the injury of the parenting plan back in two thousand and nineteen yes it was six days from the entry from the petition for dissolution of marriage to the entry to parenting plan however the party stipulated to various facts including that they both met their children's best interest is theresa was so scared and had been abused then why did she want a peaceful divorce and continue to live with bryant as the record shows until the divorce was complete and maybe a bit after it is simply improbable that brian would behave decently via text message an e mail and probably an inferable communications which arisa in the sixteen months after they got divorced the evidence was clear that he spoke to his children's mother with nothing but respect in sixteen months a tiger doesn't change his stripes if he was abusive he would have been abusive by text but there's no evidence that he abused teresa there's no evidence that he abused the older child and there's not a tied to the evidence that the bruises on the younger child were given by him in six weeks prior to that day care been investigated there's no one that looked at the handshake the doctor who was treating the trial for his outburst didn't recommend continuing to restrict visitation yet he had prior he said your honor this is your job i'm not giving a recommendation why all of it because my client didn't abuse his kids he discipline to rob the little boy being a strong parent or a strong appropriately behaved children and he deserves to have his parenting time restored and to have the correct standards of evidence apply to him where the behaviors that are twenty three thousand seven hundred and twelve years old are not drug back up the law does not support even the domestic violence act bringing up those behaviors instead supports that the that a case like this be heard before the dissolution judge no one brought it up but that doesn't mean that the local rule doesn't apply the supreme court rule doesn't apply and the domestic violence act which all indicates this goes to the dissolution judge and only one judge should hear this those rules are not merely aspirational and if they had been held right this case would have been hard on the dissolution act prior to two thousand one hundred would have never come into the courthouse and again for that reason i ask you reverse remand and restore my client's parenting time so that he can continue to parent his children does anybody proceedings for the day and this court will stand in recess i think it til tomorrow at nine o'clock so council have a great day