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Halle Berry battles ex again over daughter

By Alan Duke, CNN
November 28, 2012 -- Updated 1257 GMT (2057 HKT)
STORY HIGHLIGHTS
  • A judge orders Berry's fiance to keep away from her ex, Gabriel Aubry
  • Aubry, her daughter's dad, faces a battery charge after a fight with Olivier Martinez
  • Photos show Aubry's injuries, which says happened with Martinez attacked
  • Berry and Aubry have battled for two years over custody of young Nahla

Los Angeles (CNN) -- Halle Berry's lawyers returned to court Tuesday to ask a Los Angeles judge to keep her child's father away from their daughter because of a Thanksgiving Day fight with Berry's fiance.

The father, model Gabriel Aubry, claimed in a court filing Monday that the fiance, Olivier Martinez, ambushed him when he was dropping the daughter, 4-year-old Nahla, at Berry's Hollywood Hills home.

Police arrested Aubry, 37, and charged him with misdemeanor battery, but he insisted he was not the aggressor in the fistfight, which sent him to a hospital.

Berry, 46, and Aubry have been engaged in a bitter legal fight over custody of Nahla since their five-year romance ended in 2010. The battle heated up last year after the Oscar-winning actress announced her engagement to Martinez and asked a family court to allow her to move with the daughter to Paris.

Aubry, in a sworn statement that helped him gain a temporary restraining order against Martinez on Monday, said the fight in Berry's driveway last Thursday morning was apparently motivated by the custody battle, which Berry recently lost.

Berry, who pays Aubry child support under the shared custody agreement, was told she cannot move to Paris with the child unless Aubry goes there as well.

In his statement, Aubry said: "While he was attacking me physically, Mr. Martinez said to me in an aggressive and threatening voice, 'You cost us $3 million. When you see the judge, you're going to tell him you're going to Paris or I'm going to kill you. You're going to Paris, you're going to get your 20 grand a month in child support. From now on you're going to do drop-offs on the street.'"

Berry: I'm so glad I waited to have Nahla

Aubry's lawyer attached several photos to the filing to show his blackened, swollen eyes, cut lip and bruised face.

Aubry was treated at Cedars-Sinai Medical Center for a fractured rib and several bruises on his face and forehead, and he required stitches to repair three cuts in his mouth, the filing said.

In the statement, Aubry said Martinez first threatened him the day before, when Berry and the two men were visiting Nahla's school.

"Martinez, who seemed very angry and agitated, suddenly started speaking to me in French, and spouted off things such as, 'I wish I could beat the s**t out of you right now. You're lucky we're in a school right now," his statement said.

The next morning, when Aubry was parked in Berry's gated driveway to hand over his daughter to the nanny to spend Thanksgiving Day with her mother, Martinez approached him and said, "We need to talk," Aubry said.

"All of a sudden, Mr. Martinez jumped on me on the side of my body, and punched me such that he had taken me down to the ground," Aubry said in the sworn statement. "He continued to punch me at least two or three times, kicked me in the ribs with his knee or foot, and took my head in his hands and slammed it to the concrete driveway. It all happened so suddenly, I did not see Mr. Martinez's actions coming, and thus, I was not ready for it and was not able to defend myself."

Aubry suggested that police should look at video from the three security cameras in Berry's driveway "before she and Mr. Martinez deleted them."

It was unclear if such video exists or if police have it. If so, it could be key evidence on December 13 when Aubry is in court to face the battery charge and on December 17 when he seeks to make permanent the temporary restraining order issued Monday banning Martinez from harassing, intimidating or contacting him.

Tuesday's hearing, in which Berry hopes to persuade a judge to order Aubry to stay away from their daughter, will be in a closed courtroom.

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