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Author Topic: NEXT LEGAL MOVE?  (Read 1192 times)

foughtandwon

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NEXT LEGAL MOVE?
« on: Feb 24, 2005, 09:08:42 AM »
Dear Socrateaser
I tried reading and searching the forums as best I could before I came here but am now looking for an opinion on my next legal move.

backround info:
I have a 5 year old son. I was awarded custody in August of 04. The case was started by CPS. They investigated reports of sexual abuse and medical neglect. I had not estsablished any legal rights at the time. The case went on and it became apparent that it would be in the childs best intrest to live with me. The court battle went on for a year and a half and the BM mother is still involved in the case because she has a daughter. Bm fought every step of the way and claimed i was not the father etc. etc....
the court order gives me sole legal custody and primary physical custody. BM has resonable unsupervised parenting time. Being military I move a lot and this is always going to be a tough issue.


now the problem:
Not wanting to violate the custody order I agreed to send my son to see BM over X-mas break. Everything seemed to go smooth until 2 weeks after the vist, CPS calls and said they had to investigate reports of emotional abuse (this is out of state). I was informed that they investigated and closed the case. Now i cant point fingers but a blind man can see who made that report. When i question BM about it she says she aslo took him to a doctor because he said i was punching him in the stomach( I guess since emotionl abuse didnt work she wanted to claim physical abuse). I asked for the doctors name and number so that I can get a copy of the report to put in his medical records and she refused to give it to me.


At this point I started recording all phone conversations. I informed her about recording the calls and she said fine.

A few days ago I pick my son up  from school and his teacher is very upset and wants to talk to me. She told me CPS had came to the school and investigated reports of a black eye. There was never a black eye. My son had bumped the side of his head on a table in a resturaunt. When i looked at it i told him he might get a black eye. He repeats that during a phone conversation and a week later CPS is on my door step. again CPS cant tell me who made the report but like I said its not to hard to figure out.  

now my question.

I now have two false reports made against me, by either BM or her family. Can I take any action here and try to get BM rights terminated? If not at least supervised visits? I really dont want to live my life thinking CPS is going to show up every 2-3 months to investigate false reports. I asked CPS what they would do if a person continues to make false reports and was told they would give a verbal warning but that is about it. If this is not enough to change the custody order is there any other legal action I can take to her.







socrateaser

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RE: NEXT LEGAL MOVE?
« Reply #1 on: Feb 24, 2005, 05:22:50 PM »
>I now have two false reports made against me, by either BM or
>her family. Can I take any action here and try to get BM
>rights terminated?

You can try, but you will probably fail. Courts are extremely reluctant to terminate parental rights, and your evidence must be "clear and convincing."

If not at least supervised visits?

You need to prove that the mother is affirmatively harming the child's best interests. I don't think you have a good case.

>I really
>dont want to live my life thinking CPS is going to show up
>every 2-3 months to investigate false reports. I asked CPS
>what they would do if a person continues to make false reports
>and was told they would give a verbal warning but that is
>about it. If this is not enough to change the custody order is
>there any other legal action I can take to her.

Sue her for defamation of character. She has accused you twice of a crime and both times the allegations have gone unproven. This may be because in a criminal action you need evicence beyond all reasonable doubt to convict.

In a defamantion action you would only need to prove that it is more likely than not that the mother filed false charges -- If you do, then you're entiled to damages to restore your good name. This may be a small amount, because your name may not be damaged, but you can also ask for punitive damanges to encourage the other party not to repeat the action in the future.

Is it worth the effort? Depends. She would have to pay her own legal fees to fight you, so that would be a big drain. And, if you filed for a damage amount large enough to get her attention (e.g., $100,000), that might get her to knock off the crap.

The question is what do the CPS reports actually conclude -- insufficient evidence to take action, or no abuse. If the former, you're wasting your time, because the reports are lousy evidence -- if the latter, then you probably have a case.

Of course, if the mother has no money, then you're not gonna collect, so that makes the whole ecxercise a waste of time. But, if she has real property with equity, then I'd seriously consider the lawsuit, assuming that the CPS reports actually were resolved in your favor.




foughtandwon

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RE: NEXT LEGAL MOVE?
« Reply #2 on: Feb 25, 2005, 07:58:04 AM »
thanks for the info. I will read the first letter more closely to determine exatcly what it said and will work this CPS on this second report to see how they will close it.

If by chance it not just BM but someone in her imediate family do i still have a case?  I have her father on tape saying a few borderline comments about how rough he is going to make it for me.

what is involved in a defamantion action? As always i guess a Lawyer is needed for this.  


thanks again



socrateaser

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RE: NEXT LEGAL MOVE?
« Reply #3 on: Feb 25, 2005, 11:10:25 AM »
>thanks for the info. I will read the first letter more
>closely to determine exatcly what it said and will work this
>CPS on this second report to see how they will close it.
>
>If by chance it not just BM but someone in her imediate family
>do i still have a case?  I have her father on tape saying a
>few borderline comments about how rough he is going to make it
>for me.

Probably not enough for a lawsuit, unless he acts on his threats or his threats are of the kind that would cause you to feel an apprehension of imminent harm, i.e., "I'm gonna kick your ass all over the parking lot!", while he's standing nose to nose with you.

>
>what is involved in a defamantion action? As always i guess a
>Lawyer is needed for this.  

Defamation is a (1) false and (2) defamatory statement, (3) published to a third party, (4) and causing injury to your reputation.

A false report to CPS certainly is defamatory, and it's published to a third party. The only issue is how has it injured your reputation, and how do you convert this into a damage award.

The reason why it's important that CPS report "no abuse," is because that is credible evidence of the falsity of the statement. If CPS merely says that there is insufficient evidence of abuse, then the report "may" have been true, but just not sufficiently provable to take action, and that would not be good evidence.

As for needing an attorney, if you're gonna sue for big money, then yes, an attorney would be pretty useful.

foughtandwon

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RE: NEXT LEGAL MOVE?
« Reply #4 on: Feb 25, 2005, 11:24:50 AM »
thanks again
no the threats were not direct enough for me to take action against.

i have reveiwed the letter from the first reprt and in is worded as such.
"CPS has completed its investigation of the reports of child emotional abuse dated 12/20/04.  The reports of child emotioal abuse were unsubtantiated, and the case is now closed".


I have contacted the current case worker and am trying to get her to close the case as a "false" report. she was hard to read and wouldnt give me any answers though. just doing her job i guess.

been thinking of how to prove damage and can only think of :
damage of carrer, of course i have to inform my chain of command about this. It could infact slow or eliminate any promotion possability.

luckily i have been in the same unit since the begining of all this mess and they are aware of eveything.

my SgtMaj has instrusted me to start looking for pro bono programs in the area,


socrateaser

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RE: NEXT LEGAL MOVE?
« Reply #5 on: Feb 24, 2005, 05:22:50 PM »
>I now have two false reports made against me, by either BM or
>her family. Can I take any action here and try to get BM
>rights terminated?

You can try, but you will probably fail. Courts are extremely reluctant to terminate parental rights, and your evidence must be "clear and convincing."

If not at least supervised visits?

You need to prove that the mother is affirmatively harming the child's best interests. I don't think you have a good case.

>I really
>dont want to live my life thinking CPS is going to show up
>every 2-3 months to investigate false reports. I asked CPS
>what they would do if a person continues to make false reports
>and was told they would give a verbal warning but that is
>about it. If this is not enough to change the custody order is
>there any other legal action I can take to her.

Sue her for defamation of character. She has accused you twice of a crime and both times the allegations have gone unproven. This may be because in a criminal action you need evicence beyond all reasonable doubt to convict.

In a defamantion action you would only need to prove that it is more likely than not that the mother filed false charges -- If you do, then you're entiled to damages to restore your good name. This may be a small amount, because your name may not be damaged, but you can also ask for punitive damanges to encourage the other party not to repeat the action in the future.

Is it worth the effort? Depends. She would have to pay her own legal fees to fight you, so that would be a big drain. And, if you filed for a damage amount large enough to get her attention (e.g., $100,000), that might get her to knock off the crap.

The question is what do the CPS reports actually conclude -- insufficient evidence to take action, or no abuse. If the former, you're wasting your time, because the reports are lousy evidence -- if the latter, then you probably have a case.

Of course, if the mother has no money, then you're not gonna collect, so that makes the whole ecxercise a waste of time. But, if she has real property with equity, then I'd seriously consider the lawsuit, assuming that the CPS reports actually were resolved in your favor.




foughtandwon

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RE: NEXT LEGAL MOVE?
« Reply #6 on: Feb 25, 2005, 07:58:04 AM »
thanks for the info. I will read the first letter more closely to determine exatcly what it said and will work this CPS on this second report to see how they will close it.

If by chance it not just BM but someone in her imediate family do i still have a case?  I have her father on tape saying a few borderline comments about how rough he is going to make it for me.

what is involved in a defamantion action? As always i guess a Lawyer is needed for this.  


thanks again



socrateaser

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RE: NEXT LEGAL MOVE?
« Reply #7 on: Feb 25, 2005, 11:10:25 AM »
>thanks for the info. I will read the first letter more
>closely to determine exatcly what it said and will work this
>CPS on this second report to see how they will close it.
>
>If by chance it not just BM but someone in her imediate family
>do i still have a case?  I have her father on tape saying a
>few borderline comments about how rough he is going to make it
>for me.

Probably not enough for a lawsuit, unless he acts on his threats or his threats are of the kind that would cause you to feel an apprehension of imminent harm, i.e., "I'm gonna kick your ass all over the parking lot!", while he's standing nose to nose with you.

>
>what is involved in a defamantion action? As always i guess a
>Lawyer is needed for this.  

Defamation is a (1) false and (2) defamatory statement, (3) published to a third party, (4) and causing injury to your reputation.

A false report to CPS certainly is defamatory, and it's published to a third party. The only issue is how has it injured your reputation, and how do you convert this into a damage award.

The reason why it's important that CPS report "no abuse," is because that is credible evidence of the falsity of the statement. If CPS merely says that there is insufficient evidence of abuse, then the report "may" have been true, but just not sufficiently provable to take action, and that would not be good evidence.

As for needing an attorney, if you're gonna sue for big money, then yes, an attorney would be pretty useful.

foughtandwon

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RE: NEXT LEGAL MOVE?
« Reply #8 on: Feb 25, 2005, 11:24:50 AM »
thanks again
no the threats were not direct enough for me to take action against.

i have reveiwed the letter from the first reprt and in is worded as such.
"CPS has completed its investigation of the reports of child emotional abuse dated 12/20/04.  The reports of child emotioal abuse were unsubtantiated, and the case is now closed".


I have contacted the current case worker and am trying to get her to close the case as a "false" report. she was hard to read and wouldnt give me any answers though. just doing her job i guess.

been thinking of how to prove damage and can only think of :
damage of carrer, of course i have to inform my chain of command about this. It could infact slow or eliminate any promotion possability.

luckily i have been in the same unit since the begining of all this mess and they are aware of eveything.

my SgtMaj has instrusted me to start looking for pro bono programs in the area,

 

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