Jersey City, NJ asked in Child Custody, Civil Litigation, Criminal Law and Family Law for New York

Q: Can anyone be held civilly or criminally liable if false allegations are made and relied on for decision during custody?

My ex used pending charges against my current spouse, that have since been resolved to try and claim he was violent and my kids in danger. My spouse was not convicted of any of these charges, only misdemeanor traffic charge. Because these claims (along with other false claims) tainted the courts and law guardian and influenced the decision (there was nothing else to substantiate the claims), can anyone be held liable for slander or anything else at all? Can it be used as part of the change of circumstance to return to court?

1 Lawyer Answer
Peter Christopher Lomtevas
Peter Christopher Lomtevas
  • Divorce Lawyer
  • Brooklyn, NY
  • Licensed in New York

A: No. The asker must realize that in a post-Clinton nation, no proof is needed for up-front orders, a court investigates after those orders, and then a hearing takes place to confirm or refute the allegations in a petition. The law used to be proof by a preponderance of the evidence; it is now whether an allegation can be sustained.

It is absolutely without parallel how many Americans do not understand this nation’s current system of family law. A court has no idea who the parties are and who is telling the truth. So the law provides canned allegations that can be popped open like a can of tuna fish and spread out on the record. These allegations do not need to be true. After the court assigns its various professionals to examine the matter, the results can be a dismissal or a finding affirming the allegations.

The family members who make these allegations are immune from suit because the philosophy goes that no person should ever be afraid of making an allegation. This is a quasi-immunity stemming out of a government policy to bring out of the closet all claims against all family members. Government decided this is the most effective way to protect family members: by the entry of up-front orders and court ordered investigations into the private lives of free citizens.

None of this can lead to any changed circumstances. Even assuming that underlying false statements about another matter are revealed, changed circumstances require much more information to give rise to a petition to modify. This means government can obtain any result it wants, but the citizen has to fight for anything the citizen wants.

It has been thirty years since the idea of flipping around legal process came to being: allegation, up-front relief, court investigation, hearing on the merits. Process is no longer petition, period of discovery, presentation of evidence at trial, final order. This is the case for child protection and women protection. This approach has leaked into tort law: municipal liability, medical malpractice. It is also more and more apparent in criminal law: jail indiscriminately and make the trial fit the charges.

Everyone is immune including the claimant.

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