Wanting to sue for malicous arrests....

[onedaddy]

In NY, BM had DH falsely arrested 2x over the past year when she didn't get her way and in an attempt to improve her custody battle.  It was the 1st time we were in the criminal system so DH accepted and ACD after the 1st arrest.  The 2nd arrest caused us to end our vacation early, and he had to spend 10 hours in a maximum security cell while I posted $2500 bail at a prison 100 miles from our home.  He was again offered an ACD but we forced a trial and after 5 months DH was exonerated with the judge stating she was inconsistent and he didn't believe a word she said.

We recentlydecided to take BM to small claims court to at least recoup(sp) our criminal lawyer fees.  Our custody lawyer thinks we should wait until after the trial because she says the judge will look at us differently.  Mind you, the trial has been going on for over a year and our statute of limitation is running out.  I also am afraid if we do not win custody, the civil judge might feel we are only acting out of retaliation.

Do you feel this would be a bad move on our case or is our lawyer not looking at all the options?
 

[socrateaser]

>Do you feel this would be a bad move on our case or is our
>lawyer not looking at all the options?

That was two questions.

1. I can't say if it's a bad move, because I don't know the judge hearing your custody matter. Ask your attorney if his/her reason for wanting to wait is based on knowledge of the judge's predisposition, and if not, then what exactly is the issue.

You were apparently arrested and imprisoned on what was apparently an unprovable criminal charge, and it cost you property and liberty, and that's a big deal, completely separate from any custody battle.  

As for the statute of limitations, I don't know what you're suing for in civil court, so I can't comment on how long you could have.

2. As for your attorney not looking at all the options, it seems to me that the options are pretty simple:

a. sue now.
b. sue later.
c. don't sue.

I would sue later, if I could, because some other evidence may surface in the custody hearings that you could use to your advantage in civil court.

On the other hand, if you sue now, then you will be putting addition pressure on your opponent's resources and emotional health, all of which you work to your advantage. However, I wouldn't be suing in small claims -- I'd be suing in big claims and for at least $50,000, because I want to get the defendant's attention.

As for what the judge might think of your desire to punish the mother, of your child, my response would be, !@#$%^ off, your honor (kidding)!

If your attorney thinks that the family law judge will look down at you for seeking justice in civil court, then you've already lost your custody battle, so you may as well just throw in the towel and stop paying all those nice, juicey attorney fees.

[DecentDad]

Hi,

Just another angle perhaps not considered...

If you sue and get awarded a judgment for loss of liberty, property, (and for slander?), AND if all that happens prior to your custody trial, perhaps that could be to your advantage at custody trial.

If a civil court - by preponderance of the evidence - found that the mother was liable for her false allegations and awarded you damages, that judgment in itself becomes good stuff for the custody trial.

Your family law attorney gets to tell the family law judge just how nasty the mother has been in exaserbating the conflict and attempting to alienate the father.

Family law judge probably won't get annoyed with the father at that point, but family law judge still has the discretion to decide how much that means to the custody decision.

My guess is that a loss in civil court could be a nice little mark against whomever lost, when pursuing the custody trial.

If you can't get your civil lawsuit completed before the custody trial, then each side will spin his/her version of that lawsuit (i.e., "father is overly litigious" and "mother is falsely accusing"), and the family law judge may or may not care.

Just my layperson thoughts.

On a personal note, one of my recurring regrets is that I didn't sue my ex in 2001 after I landed in jail on a false allegation.  Who knows what impact it would have had on my custody case, but it sure would have sent a loud message to her on how I react to false allegations (and may have saved me a couple years of hearing much of the same that I repeatedly was refuting before a judge, who didn't know who to believe).

DD

[socrateaser]

>If you sue and get awarded a judgment for loss of liberty,
>property, (and for slander?), AND if all that happens prior to
>your custody trial, perhaps that could be to your advantage at
>custody trial.

Possible claims for relief would include:

a. Slander: false and defamatory oral statement published to a third party and causing injury. The statements of the mother/victim/defendant made at the criminal trial would be inadmissible, however, the statements made to the police would be admissible (if statement is written by mother, then that's libel, but the result is the same).

b. False Light: Publication of false statements or beliefs attributed to another that would be highly offensive to a reasonable person.

c. Intentional Infliction of Emotional Distress: Intentional or deliberately reckless, extreme or outrageous, conduct, causing another to suffer severe emotional distress. This is a not a stretch, but generally, you must seek medical/mental heath aid as a consequence of the injury.

d. Malicious prosecution: " (1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution.

That's pretty tough to prove. Bottom line is, that as the other parent has no money, you're not gonna get any from her. However, as all of the above-discussed actions are intentional torts, they cannot be discharged in bankruptcy, so if mother ever does get any money, you can have some of it garnished/executed against.

Is it worth your effort? I dunno.

[onedaddy]

Thank you! Sorry for my delayed response, I am not getting email notification

We have decided to keep it fairly simple and go the root of small claims, although I would like the judgement to hang over head for the rest of her life.  She is likely to NEVER have money. In fact the only time she did have $$ was when DH gave her a settlement of 125,000 after the divorce, which ironically lasted only 3 months with nothing to show for it.

We recieved a date of June 15th believe it or not and hopefully the custody preceeding will have ended way before then.  

My reasons for beginning the case before it ends is to show the judge that our actions are NOT caused by the custody trial rather the matter of the false imprisonment.

I just hope DH can tell the judge the story and not get too nervous.  I wish I could speak on his behalf.

Thank you, always and wish us luck