What happens if opposing counsel falsely testifies?

[DecentDad]

Hey Soc,

In our conflict parenting class, my ex orally denied that she had anything to do with her attorney standing up and spontaneously informing the court in May 2006 that our daughter is threatening suicide over seeing me.  She claims she didn't know what her attorney was doing (but my ex didn't say anything in court at the time).

That testimony triggered a court appointed minor's counsel (paid by the county) and order for child to undergo psychological evaluation.

As a result of that claim, child's time in my home was also severely restricted for a month.

Minor's counsel and psychologist both reported at the review hearing that child is not suicidal, troubled, nor even depressed.

I already have the transcript in which her attorney specifically tells the court that the child is threatening suicide because of seeing me.

That attorney withdrew in November 2006.  She was the worst of the worst with her sneak attacks, gross misreprentations to the court of what went on in the case, etc.

I doubt my ex is an innocent as she claims and she's just trying to cover her butt against a tactic that didn't succeed, but if I take her at face value...

Let's say I find a way to get my ex to include the statement in an affadavit that her attorney acted on her own accord in making that statement to the court (i.e., that my ex claims she never reported such to her attorney)...


1.  Is this the sort of ethics complaint a BAR investigation would find troubling?

2.  If I merely provide copies of the transcript and my ex's affadavit denying that she ever told her attorney that, would I be liable for any retaliation from the attorney?

3.  If the attorney claims in a response that my ex DID tell her that, would I receive notice of such for future reference, or would it be protected client/attorney privilege?

4.  Are there potential civil damages for emotional distress, slander, and/or punitive?

5.  If I reported this to the BAR akin to #2 question, any way it could hurt me in my custody case?

Thanks,
DD

[socrateaser]

>1.  Is this the sort of ethics complaint a BAR investigation
>would find troubling?

Very, but you need clear and convincing evidence, and even wth a sworn declaration from your ex, you won't have enough -- it's just he said, she said, now.

>
>2.  If I merely provide copies of the transcript and my ex's
>affadavit denying that she ever told her attorney that, would
>I be liable for any retaliation from the attorney?

No. It's a valid complaint.

>
>3.  If the attorney claims in a response that my ex DID tell
>her that, would I receive notice of such for future reference,
>or would it be protected client/attorney privilege?

Not privileged.

>
>4.  Are there potential civil damages for emotional distress,
>slander, and/or punitive?

It's a fraud on the court. It's perjury. You could sue for lots. Trouble is, that your ex would have to be an idiot to admit the fraud, because that means she allowed it to go forward, which makes her part of the conspiracy. You're dreamin'.

>
>5.  If I reported this to the BAR akin to #2 question, any way
>it could hurt me in my custody case?

You have too much time on your hands. How do you plan to prove this case? I can't think of any means.

[DecentDad]

I'm thinking this direction...

I think it's time to file to modify the parenting plan to 5-2-2-5, first shot trying to modify the schedule since October 2004 judgment.

Child's shrink indicates she'd support it, says that child gets something very special and valuable in my home that she doesn't get with her mother.  Minor's counsel will report on what shrink says (and I hope will roll with it in his recommendation to the court).

2.5 years ago, 730 evaluator recommended that 5-2-2-5 should begin in Sept 2006.  The report is s bit dated, but still helps add another justification in my case.

My wife had baby born July 2006.  My first child adores being big sister (shrink says this too).  It's her only sibling.

Shrink has now seen child more than 20 times.

Judge said in June 2006 that more time with dad is "part of the solution".

Judge also said that if he concludes that mother is hyperreactive and stirring the pot, she'll lose time with kid.

In June 2006, Judge also ordered biomom to stop sleeping with child.  Child indicates to both me and shrink that she still sleeps with mom.


I'll include the tidbit about the claimed suicide threat that was found to have no merit at all.  I find that to be a pretty extreme attempt to disrupt a child's life (i.e., acting against best interest).

Ex will probably respond in declaration, claiming she had nothing to do with it, it was all her attorney.


1.  If I were to somehow get evidence that former attorney denies it, says that biomom explicitly told her that child threatened suicide... is that of any value to me?  And is it admissible in order to impeach biomom's claim (e.g., did she waive privilege if she first discloses what was/wasn't discussed with attorney)?

2.  Or is this pursuit negligible in the whole scheme of what I must convince the court?

Creating trouble for the attorney would just be gravy, since she tried to cause so much trouble for me (but I came out 5-0) with horrible tactics.  I can drop that if not worth pursuing.  No biggie.

Thoughts?

Thanks,
DD

[socrateaser]

>1.  If I were to somehow get evidence that former attorney
>denies it, says that biomom explicitly told her that child
>threatened suicide... is that of any value to me?  And is it
>admissible in order to impeach biomom's claim (e.g., did she
>waive privilege if she first discloses what was/wasn't
>discussed with attorney)?

Waste-o-time.

>
>2.  Or is this pursuit negligible in the whole scheme of what
>I must convince the court?

Yes.

>
>Creating trouble for the attorney would just be gravy, since
>she tried to cause so much trouble for me (but I came out 5-0)
>with horrible tactics.  I can drop that if not worth pursuing.
> No biggie.

>Thoughts?

Dig two graves.

[DecentDad]

>Dig two graves.

In the whole OSC to modify, or just that one pursuit?

And with respect, you also said it was virtually impossible to impute the custodial parent's income.  :)

[socrateaser]

>>Dig two graves.
>
>In the whole OSC to modify, or just that one pursuit?

I think you have a shot for 50/50 if the therapist is prepared to testify in favor.

>
>And with respect, you also said it was virtually impossible to
>impute the custodial parent's income.  :)

Yes, well, it's not often that a person admits under oath that their earning capacity is far greater than what they are actually earning.

[DecentDad]

Psychologist has said that she will not willfully testify in court because it will hamper her ability to work with the child, but she does talk to minor's counsel.

We have orders that minor's counsel may confer with the psychologist without requiring parents' consent.

Minor's counsel previously reported to the court what psychologist told minor's counsel, and judge seemed to accept it.

Realistically, isn't that essentially the same as the psychologist testifying (i.e., in terms of influencing the court's decision)?

Meaning, if minor's counsel leans in favor of 50/50 and reports that he consulted psychologist, who he says also believes it would be good for child... don't you think that judge (if reasonable) would then look to mom to ask for convincing evidence why it shouldn't be 50/50?

[socrateaser]

>Psychologist has said that she will not willfully testify in
>court because it will hamper her ability to work with the
>child, but she does talk to minor's counsel.
>
>We have orders that minor's counsel may confer with the
>psychologist without requiring parents' consent.
>
>Minor's counsel previously reported to the court what
>psychologist told minor's counsel, and judge seemed to accept
>it.
>
>Realistically, isn't that essentially the same as the
>psychologist testifying (i.e., in terms of influencing the
>court's decision)?
>
>Meaning, if minor's counsel leans in favor of 50/50 and
>reports that he consulted psychologist, who he says also
>believes it would be good for child... don't you think that
>judge (if reasonable) would then look to mom to ask for
>convincing evidence why it shouldn't be 50/50?

Although, the psych's testimony is objectionable as hearsay, not within any exception, if both parties' allow it in, then it's admissible. Also, the psychologist can be forced to testify, uncomfortable as it may be to do so, because privilege has been waived by the court's order. Basically, what I'm reading is that everything depends on what minor's counsel thinks -- so, why not ask minor's counsel whether or not he/she would support your motion to modify. If not, then you're wasting your time.