OOP and DCFS

[Anthony_ill]

Hi Socrateaser,

I have been invovled in a custody dispute for about 16 months (2nd one in three years, first one represented, this one pro se). My kids are 17 and 15 at this point, we have been in counseling (with kids), GAL, mediation ect, long story but the kids have been feed allot of misinformation which has skewed there perception of things. Long story, and very messy without little hope at this point.

The reason I am writing however is about a false order of protection recently placed on me (we had it quashed during a status order with our regular status judge, motion dismissed) and now 30 days later I have been in contact with DCFS that had an additional Hot tip placed against me. Meeting with the DCSF, they have been in contact with the counselers ect. as well as myself and strongly believe this case is unfounded (have not received this from Springfield Il as of yet, but that is what he indicated as I left).

Talked to the states attourney (Will County Il)  to address this, however they indicated they do not get involved in this???

What can I do to "Present this to the court", file a harrasement suite or ??. If you look at my records, lots of police activity (trying to pick up the kids I have requested their assitance), now OOP (although dropped) and DCFS reports (also unfounded). Without getting into detials it looks like I am a real problem, when I (actually the kids) are the victums here.

Looking for what options I have regarding the use of false police reports ect. and how do we fight this, cause her to stop this.

Sorry so long,

Thanks for anything you can provide.

[socrateaser]

Under common tort law an action for wrongful institution of civil proceding lies where a person files a civil action against another for a malicious purpose, rather than to obtain the relief sought by the action itself. Here your facts indicate that your ex may have filed for the OOP without any real cause, because you state that the OOP was dropped. If the DCFS action is also dropped, then you may have enough proof of malice, because two failed civil action during a short period tends to suggest that the person filing the actions may be doing it for a reason other than to prevent the abuse that is purported to be occuring. Therefore, you may have a case, however, there really is enough factual detail for me to make a solid determination, either way.

A judgment to compensate you for your lost time would be an available remedy, as would consequential damages for your litigation fees and costs.

Also, under common tort law is an action for defamation of character, which is the publication to a third party of a false and malicious statement about another that causes damages. Here, your facts show that your ex published to a third party, because she filed a report with DCFS, the report was certainly defamatory, because it accused you of mistreatment of your child(ren), it causes you damage, because abuse is criminal and a false publication of criminal behavior is called defamation per quod (presumed). The final question is whether the DCFS statement was false. This is actually a hairsplitter, because DCFS will not state that the report was false, only that there was insufficient evidence to support it. Your testimony that you did nothing, combined with the report's statement of inssuficient evidence, if combined with the dropped civil action, may be sufficient to find that this statement was false, because your burden of proof is only a preponderance of evidence, which is simply any amount greater than 50%. Therefore, your ex is liable for defamation.

The remedy here is the same as above. For both of these torts, you are also entitled to punitive damages, which generally may be no more tha 4xs the amount of any compensatory damages awarded, to encourage the other person to not repeat their behavior in the future.

If you file this case in small claims you probably won't get much, and you're ex will not be particiularly motivated to stop messing with you. However, if your ex owns her own home, then you might want to actually retain an attorney and sue her in regular civil court, because that would cost her quite a bit to defend, and she would probably be forced to settle with you in order to escape what would almost certainly be a very large attorney bill.

I really don't have enough facts to make a solid case for you, and you may have substantial real damages of which I'm unaware (like being arrested and jailed, which would trigger a much bigger damage award).

Anyway, those are the possibilities, and it will give you something to think about.

[Anthony_ill]

Just a real quick note, thank you for being so complete with your reply.

I am waiting for the final report back from DCFS to take to court and see what I can do.

Two questions remain:
1) I assume this is not family court but another venue that this is reviewed and made actionable (or is this something the family court judge can also proceed with?).

2) Can her attorney address me outside the court to review alternative solutions to this case. I am aware that traditionally both sides attorney's discuss and drive toward solutions, however I am currenty pro se and have nott approached him on this in any way.  Are there legal issues that prevent a pro se attorney from contacting my  ex-wilfe's  attorney's to recommend a solution to this issue??

Thanks so much, the court system is very much different than I expected since all efforts seems to go against the Judge making decisions (and just allowing lawyers to find a compromise outside of the court room, which in my case is not possilbe, since my exwife refuses to move towards any solution).

Thanks again for all of your help.

[socrateaser]

>Two questions remain:
>1) I assume this is not family court but another venue that
>this is reviewed and made actionable (or is this something the
>family court judge can also proceed with?).

Yes. Civil court. These are straight up law suits where each side pays for their own attorney fees, which sometimes can cause a person who has extremely limited financial resources to settle in order to avoid losing even bigger in court.

>2) Can her attorney address me outside the court to review
>alternative solutions to this case. I am aware that
>traditionally both sides attorney's discuss and drive toward
>solutions, however I am currenty pro se and have nott
>approached him on this in any way.  Are there legal issues
>that prevent a pro se attorney from contacting my  ex-wilfe's
>attorney's to recommend a solution to this issue??

An attorney representing an opposing party can negotiate with a pro se litigant. The attorney is not supposed to mislead you as to his interests, or provide you with advice other than to seek legal representation, but once you have informed the court that you are pro se, the attorney should deal with you, in an effort to settle without litigation.

However, some attorney can be extremely stubborn and will simply refuse to negotiate with a pro se. If this is the case, you may need to force the issue by filing a motion to order the attorney to make an effort negotiate in good faith towards settlement.