Hearsay and constraints...

[dipper]

Soc,

Dh and I met with lawyer today.  We have many emails from teachers referring to ss not doing homework, his behavior, suspensions, and one teacher asking twice about medication to control ss....

Lawyer says that unless other lawyer stipulates - or she can get a teacher to actually testify - they are just hearsay.  We can only show that dh has kept in contact with teachers - cannot use content to prove the other points.  I have always heard people say that schools do not like to be involved in custody battles.  While they would not be asked to choose who they think should have ss, I feel they would still be hesitant.  We have copies of the original suspension letters.  And we can print out graded homework.  But, that doesnt show the amount of problems that have been going on.

1) Is there any way to reveal this information? Are all letters considered hearsay?


Okay....original custody order done in 2001 - dh had full custody of one child....ex got primary custody/joint legal of youngest.  In 2004, went back to court as she moved and dh sought primary.  The judge then ordered a temporary order basically giving the same as before.....

to establish a pattern of his ex cutting him out of ss' life, and being difficult by changing visitations, and ignoring requests we wrote down pages of such instances - but lawyer says that since a (temp) order was entered last year, we have to go from that date on.  Previous actions are inadmissable.  Six months is not alot of time to PROVE a pattern.

2) How do we go about establishing a pattern?


Lawyer wants me to testify as well.  DH's ex pretends I dont exist.  I have heard others say that they did not testify and in some instances even attend hearings -

What are your thoughts on the new spouse being part of the actual hearing?

[socrateaser]

>1) Is there any way to reveal this information? Are all
>letters considered hearsay?

Hearsay is an out of court statement made by someone other than the declarant and offered to prove the truth of the matter asserted. The purpose of the hearsay rule is to prevent evidence being offered without the opportunity to question the credibility of the offeror.

If the court were to allow letters written by third parties without the author's presence in court, then anyone could invent anything they wanted and write it down, and their writing would become proof. Could you imagine what kind of trial would come from that quality of evidence?

The only documents that are permitted in court without a witness are documents of a  complete legal transaction, like a receipt, or invoice, and where the transaction is not open to challege as fraudulent. Also, business records are excepted if they are the product of a disinterested third party with a duty to make a record of the reported event, such as a police report, and then only to the extent that the report states facts not reasonably subject to dispute. For example, if a report from a school administrator were to state that "Johnny missed 50 of the past 60 days of school," then that written statement would be admissible without the administrator's presence, because there is nothing of value that the author could add to that statement by appearing in court to confirm that he/she wrote it.

However, if the statement said, "Johnny missed 50 of the past 60 days of school, because his mother was drunk," then THAT statement would be inadmissible, because the administrator is stating a fact/opinion that is extremely damaging and is potentially the subject of considerable dispute, and Johnny's mother has a right to cross examine the administrator to determine the motivation for making such a statement.

>Okay....original custody order done in 2001 - dh had full
>custody of one child....ex got primary custody/joint legal of
>youngest.  In 2004, went back to court as she moved and dh
>sought primary.  The judge then ordered a temporary order
>basically giving the same as before.....
>
>to establish a pattern of his ex cutting him out of ss' life,
>and being difficult by changing visitations, and ignoring
>requests we wrote down pages of such instances - but lawyer
>says that since a (temp) order was entered last year, we have
>to go from that date on.  Previous actions are inadmissable.
>Six months is not alot of time to PROVE a pattern.

Your attorney is completely wrong or deliberately blowing you off. A temporary order is TEMPORARY, i.e., the matter and the evidence has not yet been subjected to a full trial on the merits, and therefore that evidence is not barred from consideration at trial. Due process entitles you to a full hearing on the merits of each and matter at issue before the court. If this requires you to reintroduce evidence that was used during a temporary hearing, then so be it! You are entitled to a full hearing on that evidence prior to final judgment.

>2) How do we go about establishing a pattern?

We discussed this in a previous post.

>Lawyer wants me to testify as well.  DH's ex pretends I dont
>exist.  I have heard others say that they did not testify and
>in some instances even attend hearings
>
>What are your thoughts on the new spouse being part of the
>actual hearing?

I really can't comment. Your attorney hopefully has a game plan, but I don't know what it is, and I can't evaluate any individual move on his/her part without knowing its purpose.