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May I enter my son's journals as evidence? They state child abuse and his preference for custody.

El Monte, CA |
Filed under: Child abuse

I am in California. Ex-Spouse is a relentless vexation litigant. Child is 10. Judge is refusing to meet with child. Seems logical to submit journals that tell the whole story. I encouraged him to write a Journal starting at 7. Most entries are happy kid stuff. But Ex is saying I 'coached the child to express his displeasure' but in reality, child is unhappy about several serious broken promises, verbal and physical confrontations and denials of visitation.
I am the Primary caregiver. The child is not coached Very emotionally and mentally advanced. I would not mess with a child's beautiful mind.

Attorney Answers 6

Posted

A better strategy, assuming you are sincere and your budget not severly limited, will be retaining an expert. The right psychologist can interview the child and, with child's permission please, read the journal. Then the psychologist can form an opinion as to the child's view of his custody decision, itemize and evaluate the child's concerns, etc. If the ex is truly a relentless vexatious litigant, there is not alternative but to work with very experienced counsel and make such a strong showing this time that further litigation is discouraged. You should also discuss payment of your fees and expert expenses by the vexatious litigant. The percentage of persons in the subgroup of parents who insist upon constantly relitigating custody who suffer melntal illness, expecially Cluster B personality disorder, is known to be much higher than in the general population. Unfortunately Cluster B is extremely difficult to diagnose, and recognizeable mostly through certain persistent behaviors, such as bad faith litigation. At some point the custody judge needs to become proactive as a matter of protecting the child.

Your best strategy will be to find counsel who knows how to get that done.

Best wishes for an outcome that truly serves the best interests of your child, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.

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Posted

Important disclaimer: I am licensed to practice in Oregon, not California, and so can't give specific advice about California laws. You should consult in private with an attorney who practices in California if you have any questions.

That said: These documents are hearsay. Hearsay is any statement made out of court (in this case, written out of court) offered in evidence to prove the truth of the statement being made. So, for example, if the statement is "my father hit me," it's hearsay if it's offered to prove that his father hit him; but it's not hearsay if it's offered to prove that he can write in English, because that's not what's being asserted. In any case, hearsay is generally not admissible as evidence. But there are a lot of exceptions to this rule. If you're going through a court case, you should consult with an attorney to discuss this issue.

Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com

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Mark Allen Massey

Mark Allen Massey

Posted

The child's written statements might be admissible to show his state of mind with respect to his father. State of mind is not an exception to the hearsay rule, it is simply not offered to prove the truth of the matter asserted and so, is not excluded by the hearsay rule.

Posted

Not enough informatio0n to answer your question.

1. What are you trying to accomplish?
2. What hearings are now pending before the court?
3. What's the current custody arrangement?

When you have clear answers to these questions, you should discuss them, and the factual details of your situation, with an EXPERIENCED family law attorney. Child custody trial work is not a "do it yourself" kind of project.

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Asker

Posted

I have clear answers. There is something about a missing child that makes you pay attention. I am about to file an Request for Orders. I am going to request that the Judge or a therapist review the material. There is child abuse involved.

Posted

The primary problem with hearsay evidence is that the declarant (in this case, the child) cannot be cross-examined, so the reliability of the statements can't be fairly evaluated. The law of evidence has developed to permit some exceptions to the hearsay rule where the circumstances of the making of the statement provide sufficient indicia of reliability. We have no way of knowing whether those circumstances exist with respect to the statements in your child's journal. Each statement must be evaluated separately. This is what one pays lawyers to do.

Not legal advice as I don't practice law in California. It's just my two cents on the facts you describe in light of general principles of law. If you need legal advice, please consult a lawyer who holds California licensure. That's not me.

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Posted

Seems like a request for a investigation by court services, a private 730 or appointment of minor's counsel may be appropriate to request. For further information, visit http://www.ellifritzlaw.com

Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.

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Posted

There are different ways to deal with this issue and depending on where your case is and who your Judge is, there may be different things that are favored. Some Courts like minor's counsel and some court's liberally allow interviews with children of an appropriate age. Some counties report these interviews to the Judge when conducted by a mediator and some do not. You should consult with a local attorney only and learn what your options are based upon the specific location and procedural posture of your case. Our Family Law Department is run by a certified family law specialist, Sam Wasserson, with nearly 40 years experience. Our initial consultations are free with no obligation if you'd like to schedule. Thank you.

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