ADVENTURES IN FAMILY LAW LITIGATION - PROVING A NEGATIVE

I guess the reason we call what we do the practice of law is that we are continuing to practice. I like to think I learn new things every day. ? Sometimes that learning is a negative type of learning where you see someone do something and vow to yourself? Ok, I just learned something not to do.? ?But every so often you will find yourself with an ah ha moment and realize that the information you received was invaluable. ? It is this positive learning experience that I want to share.?

I was in a long cause trial and every possible issue was contested. ? The big issue was child custody.? I represented Husband.? Wife had a great lawyer from a prominent firm.? We had dueling experts and an Evidence Code 730 expert (Court appointed expert) ? Wife accused Husband of years of physical and mental abuse of her and their children.? ? Husband vehemently denied this and claimed that Wife was the real abuser. ? At trial, Wife testified that she went to a number of therapists and doctors over the years to whom she reported the abuse. ? One of the doctors, who turned out to be a “family friend” even testified as to what Wife told him.????

As Husband’s lawyer, my unenviable task was to prove a negative.? How could I possibly show that Wife’s allegations were untrue or at the very least create some doubt in the Court’s mind???

So I asked myself “Aren’t doctors and therapists mandatory reporters?”? Are they not required to report abuse?? Wife’s accusations were really graphic and specific not only as they pertained to her, but to the children.? Aren’t these professionals required to report child abuse?? Of course they are.??

At around the same time I was preparing for trial, an article came out in a professional publication I regularly receive.? The article was written by a then sitting Judge - Hon. Amy M. Pellman about how family law lawyers can obtain copies of Children's Protective Services files.? This was the “ah ha” moment I was referring to above.? I then got to work and sent the required document requests over to CPS.????

CPS responded with a declaration that no such records have ever existed.??

Could it be that Wife just had miserable luck picking doctors and therapists who don’t take their reporting requirements seriously???

Could it be that Wife did not report the abuse?? Maybe there was no abuse at all.??

The declaration from the Custodian of Records from CPS was an invaluable exhibit. ? The Court disbelieved Wife’s assertions and ruled that the Wife failed to establish that domestic violence occurred.? Thank you Judge Pellman.??

I am a Certified Family Law Specialist. I practice on the boundary line between Ventura and Los Angeles Counties in Agoura Hills. Thinking on your feet and outside of the box is one of the keys to success.? Sometimes you can find your best evidence in unexpected places. ? Please subscribe to my newsletter and follow me on Instagram at ??https://www.instagram.com/divorcewithjeff/