Counter to modify custody

[Proserpina]

They claimed they would handle all of it.

But, I'm not sure that they would.

There are several parts to your situation which you have noted here and they involve very different areas of law; there is the response to the custody matter; the malicious prosecution matter; there is the matter of slander against both your ex and her attorney. These parts cannot be dealt with in the same motion (and even in the same court).

Please understand I'm not trying to shoot down your plans or your intent - but I do not believe I'm alone in being more than a little concerned that you are heading for very dangerous waters and without, it seems, adequate representation.

If nothing else please consider the following:

Forget the rest of it for now - concentrate on your upcoming custody matter. Focus not on what you can throw back to your ex, but what you can do to counter the allegations. I believe it would be extremely unwise for you to request that your ex's visitation rights are terminated because so far there simply isn't cause to do so.

Remember the burden of proof is on your ex to prove the allegations and to justify why a modification is necessary.

Then, once this is over, you can start focusing on the other matters if you wish.

 

[Proserpina]

Her attorney has said the same thing, that I am, "a child molester."

Yes, there were witnesses.

Witnesses who can be subpoenaed to testify?

If anything I would drop the part of pursuing her lawyer, however, I WILL NOT drop a civil case against my ex.

Please don't let your determination get in the way of reality - as stated, defamation actions can be very costly and time-consuming to pursue; I think a common response has been "$20k (if cheap) and 3 years (if quick)"

The fact is, this case has been a complete abuse of the entire process. All a mother has to do is make an accusation, and "poof" the father is guilty.

That unfortunately goes both ways - both genders can and have been unfairly treated during part of a CPS investigation. However this does not mean that there has been any abuse of the legal process.

However, I can not even get CPS to respond, even though the situation has changed. And, the mother has directed the child. It is a completely unfair process to fathers and our rights.

What are you asking of CPS?

 

[CJane]

Dude. Honestly.

What county are you in?

You need to take Dog's advice and focus ONLY on the custody matter right now. You need to file an answer to HER suit and THEN a Counter Motion.

The ONLY way to restrict a parent's time (let alone remove visitation altogether) in Missouri is to prove that they're an actual and immediate danger to the child.

You will ALSO have to prove a change in circumstances.

AND you'll have to show that such incredible upheaval is in the best interests of the child.

Forget everything else, and focus on one case at a time.

Your issues with the attorney are STILL better handled through the Bar Assoc, not a lawsuit.

 

[ProSeDadinMD]

Forget the rest of it for now - concentrate on your upcoming custody matter...

The best advice in this thread.

1 step at a time.

Don't be discouraged from going Pro Se, IF you are really sure you can handle it.

 

[quincy]

Gr3yB3ard, I was asked to review your posts here. There is little left for me to say, as the advice you have already received has been excellent (and yet my post will still be, undoubtedly, wordy ).

I agree that you should concentrate on the custody matter. If you throw too many balls in the air at once, you are liable to drop the one that is most vital to you, and to your children's future.

That said, however, I think you MUST address the child molestation accusations - not necessarily through a slander action at this time, but rather through a motion to the court for a request of sanctions against your ex-wife for perjury. False accusations of child abuse or molestation cannot go unchallenged. Accusations of this sort can affect any custody decision.

If the court finds that your ex-wife has intentionally, and with the purpose of deceiving the court, testified falsely about child abuse or molestation, she can be fined.

You seem to have good evidence to support your position that her claims of child abuse or molestation are false - with testimony from the CPS worker and your child's therapist, along with the lie detector test results.

Although fines tend to be minimal ($500 or so), sanctions make it known very clearly that the court will not tolerate lies, especially the type of lies being told by your ex-wife.

I agree with those who say that any abuse of process or malicious prosecution action against the attorney would be best handled through a complaint made to the state. Complaints about private attorneys can be made through the Office of Chief Discliplinary Counsel (which is an agency of the Missouri Supreme Court). You can access their site, and a complaint form, at Office of Chief Disciplinary Counsel. Click on "For the Public."

For a slander action - and it does appear from what you have posted that you could have one worth pursuing - I recommend you consult with an attorney in your area. Defamation actions are expensive and should not be undertaken without a careful review of the facts. There is a two year statute of limitations for defamation in Missouri, so you should have time to handle the custody issues before a defamation action needs to be filed.

Missouri does not recognize "per se" defamation, which in other states will allow for the recovery of damages on "presumed injury" for any false accusations of crimes such as the one you are accused of committing. Therefore, without presumed injury, you would be responsible for proving that the words spoken by your ex-wife were unequivocally defamatory, that they were spoken with negligence, and that you suffered actual damages as a result. Although the burden of proving truth is on the defendant in a defamation action, you strengthen your claim by being able to prove what was said was false.

Actual damages include general damages for the impairment to your reputation, and all economic losses suffered as a result of the defamatory words that were spoken. All awards must be supported by competent evidence. A slander action would require testimony from those who heard the slanderous statements and acted on the words in some way. The harassment by co-workers and the loss of a job or job opportunities are evidence of reputational injury and can be used to support your claim.

One thing not mentioned in your post is the type of employment you had, and that can make a difference in a defamation suit. If you worked with children, for instance, then your ex-wife could potentially use a "qualified privilege" defense, if she felt it was her duty to report her suspicions to your employer. Otherwise, she would need to show that what she reported to your employer, and the prospective employers, was true or substantially true, in order to defeat a slander action against her.

Because I definitely agree that you would be wise to have an attorney, I suggest you look into the free and low-cost legal aid services near you. You can access legal services organizations at the following websites: Legal Services of Missouri. and Missouri Attorney General Chris Koster :: Frequently Asked Questions - General Topics. (click on free services).

Good luck.