Recorded conversation with SD (kinda long...sorry)

[SM_in_FL]

Hi, Soc!!!!
Hope you've had happy holidays thus far and wish you the merriest xmas and new year.

I've got some questions for you with regards to a coversation i recorded between SD and myself. A little background: Sd seems to confide in me for alot of things. She told me that BM had called her stupid because of her grades on her report card. SD also stated that BM is barely home and therefore does not help her with HW or even make sure that SD does HW. (this is also reflected on SD's progress report where her teacher says she's "off focus and not completing HW or Classwork" and "lazy and not putting forth effort.") SD also said that BM threatened her that if she told her GAL or the judge that she wanted to live with DH that she'd never visit her again and that she'd move away because, to BM, sd would be a betrayer and dead to her as a daughter. BM allegedly also told SD that her father didn't really love her and was seeking custody only for CS and that if SD ended up on the streets because BM had no money to support them due to DH leaving that DH would not take her in because she was bad when visiting DH. That BM was the only one that loved her and a few other things about me that aren't worth mentioning.

After SD told me all this I asked her if she'd be willing to repeat these things while being recorded and if it was ok to inform her GAL. She agreed and so was recorded making these statements. I did have to ask some leading questions because she got nervous and am worried that this might present an issue.

SD is 9yrs old and our trial date is on the 22nd of this month. GAL is planning on meeting up with us again for any updates. She's already been notified as to SD's statements and the recording and has asked us to have SD contact her when she is with us next. GAL further stated that she's tried to contact BM repeatedly and BM has failed to contact her.

So here are my questions:

1) Since i got permission from her father to record and SD was aware of being recorded, can DH use it in court or does BM have to be notified as well in order for it to be admissable? (they have joint legal custody. Also because of rules of evidence stating other parties have to be notified of new evidence).

2) Is this evidence or hearsay? would it need to be transcribed in order to make the difference or does that even matter?

3) Should GAL listen to this? If so, would it be ok to have her listen in the presence of SD so that GAL does not think SD was "instructed" on what to say or that the recording or allegations were staged?

4) SD is scared of BM finding out, based on that, is it better to just inform the GAL, since these conversations with her are confidential and not use it in court?

5) Can the fact that BM is not returning GAL's calls be used to our advantage being that GAL herself stated this (general lack of interest) or am i reaching?

6) What would be the next logical step? What would you do?

Thanks Soc!
SM :D

[socrateaser]

>1) Since i got permission from her father to record and SD was
>aware of being recorded, can DH use it in court or does BM
>have to be notified as well in order for it to be admissable?
>(they have joint legal custody. Also because of rules of
>evidence stating other parties have to be notified of new
>evidence).

If you intend to use the evidence as part of your case in chief (direct case), then you need to notify the other party that you will use it. However, you don't need the other party's permission as the SD consented to the recording.

>
>2) Is this evidence or hearsay? would it need to be
>transcribed in order to make the difference or does that even
>matter?

Hearsay is an out of court statement made by someone other than the declarant and offered to prove the truth of the matter asserted. Here, you are offering a recording of the declarant SD, which is an out of court statement, so if YOU are offering it, then it is hearsay. However, the recording can be offered as a recorded recollection of things that you heard on the date and time in question, thereby escaping the hearsay rule without requiring the child's testimony.

>3) Should GAL listen to this? If so, would it be ok to have
>her listen in the presence of SD so that GAL does not think SD
>was "instructed" on what to say or that the recording or
>allegations were staged?

It's up to the GAL. In court, the judge side will almost certainly want to discover if the child was under duress or undue influence.

>4) SD is scared of BM finding out, based on that, is it better
>to just inform the GAL, since these conversations with her are
>confidential and not use it in court?

Play the tape. Let the GAL decide whether to pursue if further.

>5) Can the fact that BM is not returning GAL's calls be used
>to our advantage being that GAL herself stated this (general
>lack of interest) or am i reaching?

Seems that the GAL will have no trouble treating this lack of interest as a negative in any report.

>6) What would be the next logical step? What would you do?

I would consider having the child evaluated by a psychologist as to mental state. This will be as good or better than the tape recording.

[SM_in_FL]

Hi, Soc!
Have some follow up questions pertaining to your response:

1) DH's final hearing is on the 22nd of this month. That being said, can he still motion for a psych eval for SD? If so, how? Would it affect the final hearing date?

2) Since BM seems to be verbally abusing and threatening SD (as per SD's statements on tape), is that not sufficient within itself to show that DH has met his burden of proof to show that BM acts against SD's best interests in order to have custody modified?

3) GAL spoke to SD and asked her if everything she stated were her words to which SD affirmatively replied. GAL then said that she'd need to think about this, since she'd already submitted her report stating that she thought SD was better with BM (based on caselaw stating that DH had not met his burden). Is this a good sign?

Thanks again, Soc!
SM