I'm involved in a child custody case. I have temporary sole custody of my baby. I agreed to a psychological evaluation as part of the "time sharing" negotiations with the father of my child. I was told it was typical in sole custody cases. The father's attorney wrote a letter to the psychologist with a list of false accusation about my character. She accused me of drug use, of having a "mental condition," of having a pattern of falsely accusing men of abuse, of being an "unfit" mother, and of having a strange relationship with younger men. She stated all of these things factually...which they are not. I have a clean criminal record. I am a mother of twenty years. I have a public education license and I'm a teacher. I am greatly troubled by this lawyer's harrassment.
I actually have proof that addresses each of this lawyer's accusations.
Criminal Defense Attorney
"Can" you sue? There is an old saying, "you can sue a ham sandwich." The real question is whether you would have much chance of winning a lawsuit for libel against the father's attorney. There are few absolutes in life, but I would say you have almost no hope of winning such a suit.
Even on a level playing field, you would not convince a jury that, most likely, the lawyer knew the letter to the psychologist was false or acted with actual malice. In all likelihood the lawyer did not invent these accusations out of thin air and has no malice against you apart from aggressively representing the father. She based her letter on what her client claimed to be true.
The law of libel, slander and defamation is NOT a level playing field. Such suits are discouraged by the law. "If the alleged defamatory statement is made to achieve the objects of the litigation, the absolute privilege applies even though the statement is made outside the courtroom and no function of the court or its officers is involved." Romero v. Prince, 85 N.M. 474, 477, 513 P.2d 717, 720 (Ct. App. 1973); Penny v. Sherman, 101 N.M. 517, 520, 684 P.2d 1182, 1185 (Ct. App. 1984) (noting that statements made in relation to “an ongoing or contemplated judicial proceeding” could receive absolute privilege protection); but see Gregory Rockhouse Ranch, L.L.C. v. Glenn’s Water Well Serv., Inc., 2008-NMCA-101, ¶ 19, 191 P.3d 548, 554 (denying absolute privilege defense as to particular communications because they were made at a time well before litigation was seriously contemplated). Because you're "involved in a child custody case" and the letter was made in relation to that case to achieve a better custody decision, the absolute privilege will result in the new judge in the defamation suit summarily throwing out your lawsuit.
Rather than waste precious time and money in an ill fated lawsuit against the lawyer, you need to convince the psychologist that these accusations - originating as they must from the father - are not true. Even as a fit mother, as you will no doubt be found, the court will still favor an arrangement where the father has reasonable visitation rights - after all, it is "his" baby too.
Personal Injury Lawyer
Atttorney Arons gave an excellent answer. Additionally, what occurs in court does have some privilege. Speak with your lawyer. Good luck.
It would be an uphill battle.
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