Q: How can I obtain a new hearing due to a variety of circumstances?
Going through a divorce and in a custody battle with my husband. He is a functioning alcoholic and weedhead. In our Temporary Custody Hearing last Wednesday, the father was cross examined by his attorney and she asked if he smoked or drank and he said no. When court ended, I found a post on her husband's Instagram page just 5 days prior with the husband smoking weed and drinking straight out of bottle of vodka.
File a:
- MOTION TO REVIEW NEW EVIDENCE
- a MOTION TO REQUEST REVIEW OF TESTIMONY
- MOTION FOR TRANSCRIPT OF PROCEEDINGS
- MOTION TO COMPEL DRUG TESTING
On Saturday, the judge ordered me to pay $432 per month based on lies.
I had a substantial amount of evidence in the form of exhibits but some how the court portal did not receive them. The judge wouldn't allow me to pass out copies to all parties. Is this a denial of due process?
How would you submit the video evidence? Flash Drive to the judge and to the husband's attorney? Or by Dropbox to both
A:
- MOTION TO REVIEW NEW EVIDENCE: The answer is probably no, but you can give it a try by filing a Motion for Reconsideration. You'll need to explain (1) why you don't produce this evidence at trial because the Court can't consider newly discovered evidence that could have been found before trial through "reasonable diligence" and (2) why it is relevant or may change the outcome.
It is extremely rare that the Court considers new evidence.
- a MOTION TO REQUEST REVIEW OF TESTIMONY: No. You can't file a motion like this.
- MOTION FOR TRANSCRIPT OF PROCEEDINGS: No. This is only relevant to an appeal, and you can't appeal temporary orders, and even if you could appeal, it is the responsibility of the person appeal to hire and pay for a licensed Court reporter to transcribe it.
Your better approach might be to get a copy of the recording of the hearing, and in future motions and your final Pretrial Statement, you can quote what you want the Court to hear and cite the time the quote was stated.
- MOTION TO COMPEL DRUG TESTING: Yes, you can ask for him to submit to a hair follicle and random drug testing, Certainly, you can use his post for that. It's not going to change the temporary orders, but if a positive test comes back, you can CONSIDER filing for new temporary orders. But be aware, marijuana and alcohol are both legal, so using them doesn't disqualify him from having unsupervised time--only the abuse of those substances would disqualify him. If he tests positive for drugs like meth, cocaine, etc., then you may need consider filing for an emergency.
Regarding the exhibit issue, exhibits need to be properly submitted ahead of trial, and it's your duty to make sure that they are. If they are not, the Court is not required to admit them. I disagree with the judge's decision, but this is not a violation of your due process rights. There may be an argument that the judge erred in not admitting them because the Court must consider all evidence that bear on a child's best interests under Hays v. Gama and Kelly v. Kelly. That is something you can point out if you decide to file a Motion to Reconsider.
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