In a domestic violence case, whether it's an Order of Protection, a Civil No-Contact Order, a Restraining Order, or a criminal charge of domestic violence, admissibility of evidence is important. In particular, officers, dispatchers, and 9-1-1 call tapes can make up a big part of the case, and the testimony.
But, how do you get those tapes into evidence? If the person isn't there to testify about what happened, it's hearsay and it's not admissible. Furthermore, in Crawford v. Davis, 541, U.S. 36, 53-54 (2003), the U.S. Supreme Court talked about the inadmissibility of evidence as hearsay when it's "testimonial" or created for the purposes of litigation.
And the argument has been made that 9-1-1 calls are testimonial because they are given by an individual who is being questioned by an agent of law enforcement, i.e., a dispatcher who answers the phone at the police department. However, the U.S. Supreme Court determined in Davis v. Washington, 547 U.S. 813 (2006), that 9-1-1 calls are not "testimonial" when the person is frantic, is calling for help for an immediate emergency, and is not calmly answering questions put forth by an agent of law enforcement for the purposes of future litigation. The U.S. Supreme Court held that it's one thing to calmly answer questions in an interview, but it's quite another when a person is screaming into the phone for help because someone is trying to hurt them, or someone in their presence. Id.
In Illinois, the First Circuit held that a 9-1-1 call, pursuant to the Supreme Court's ruling in Davis, did not constitute "testimonial hearsay" when the contact with the dispatcher was volunteered for the purpose of initiating police action or criminal prosecution. People v West, 311 Ill.App.3d 28 (1st Dist. 2005).
Also remember that such testimony can be admissible under the "excited utterance" hearsay exception, as well as the "business records" exception. It can also be admissible under the "past recollection recorded" hearsay exception. In a custody case, or an Order of Protection case, there are few things that sway a judge more than hearing a 9-1-1 call in which a frightened individual is reporting an incident of violence.
Anita Hill Contacted by Supreme Court Justice Clarence Thomas' Wife
Ok, everyone knows I'm a divorce attorney. And, I know how to set up a situation to make one party look bad. And, I'll admit when I'm wrong. And, I'll admit I'm not clairvoyant, and I don't have a crystal ball.
But, I do know how people act when a marriage is in trouble. And I see trouble in the Thomas' household.
Click here at the Associated Press site, to see what Justice Thomas' wife did 20 years after the fact. See also here at Above The Law to see other law professionals' opinions on her actions.
But, I do know how people act when a marriage is in trouble. And I see trouble in the Thomas' household.
Click here at the Associated Press site, to see what Justice Thomas' wife did 20 years after the fact. See also here at Above The Law to see other law professionals' opinions on her actions.
Minimize Your Legal Fees: Marion County & Clay County, Illinois
Clients are always concerned about the money it costs to talk to their attorney. But, don't make the mistake of not telling your attorney when you talk to your ex-spouse or your soon-to-be ex-spouse. When your ex's attorney calls your attorney, and talks all about how the two clients are working out a settlement, your attorney is not only going to look like a fool (for being left in the dark) but also now has to do some "fast foot work" to keep from LOOKING like a fool. Your attorney will also be upset with you, and rightfully so.
Yes, it costs to talk to your attorney, but don't make the mistake of paying for an attorney, and not letting them do the job for which they were hired. If you're not going to use your attorney to their fullest ability, then don't hire one.
Two primary rules in dealing with your attorney: (1) don't lie to your attorney. That also means don't try to "hide" anything from your attorney either - omission is the same as a lie to an attorney. And (2) tell your attorney about any conversations with your ex-spouse. The conversation will NEVER sound the same coming from your ex and his/her attorney, rather than the way the conversation took place according to you. If you're not comfortable with doing this with your attorney, perhaps you should re-consider the relationship between you and your attorney.
In my experience, it always costs a client MORE money for me to chase after a client, to find out what happened, after opposing counsel calls me about how the two clients had a long talk, and worked out a settlement. Inevitably, my client didn't work out a deal, but now I have to deal with the fall-out, and what opposing counsel claims happened between the two. It always costs more to put the "cat back in the bag," then never letting the "cat out of the bag" in the first place.
Best Rule: always let your attorney know what's going on between you and your ex-spouse. We attorneys can work cheaper with information than we can with surprise.
Yes, it costs to talk to your attorney, but don't make the mistake of paying for an attorney, and not letting them do the job for which they were hired. If you're not going to use your attorney to their fullest ability, then don't hire one.
Two primary rules in dealing with your attorney: (1) don't lie to your attorney. That also means don't try to "hide" anything from your attorney either - omission is the same as a lie to an attorney. And (2) tell your attorney about any conversations with your ex-spouse. The conversation will NEVER sound the same coming from your ex and his/her attorney, rather than the way the conversation took place according to you. If you're not comfortable with doing this with your attorney, perhaps you should re-consider the relationship between you and your attorney.
In my experience, it always costs a client MORE money for me to chase after a client, to find out what happened, after opposing counsel calls me about how the two clients had a long talk, and worked out a settlement. Inevitably, my client didn't work out a deal, but now I have to deal with the fall-out, and what opposing counsel claims happened between the two. It always costs more to put the "cat back in the bag," then never letting the "cat out of the bag" in the first place.
Best Rule: always let your attorney know what's going on between you and your ex-spouse. We attorneys can work cheaper with information than we can with surprise.
Modifying A Custody Order Within Two Years: Marion County & Clinton County Illinois
If anyone wants to fight a custody order within two (2) years of its entry, Illinois requires the non-custodial parent to file a Petition to Modify Custody with an Affidavit alleging facts that give the court a "reason to belive" that the present environment seriously endangers the child or children. 750 ILCS 5/610(a).
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
Hearsay: Marion County & Jefferson County, Illinois
It's something everybody says they know about, but few people understand. The court defines hearsay as an "out of court statement offered for the truth of the matter asserted." What does that mean in plain language? It means that if you testify as to what someone else said, that other person must be available to testify as to what they said.
An example that is used all the time in divorce cases: if you testify about what your child told you about getting hit by your ex, your child will have to tell the judge about being hit. Why? Because you're not wanting the judge to believe you, you're wanting the judge to believe the child was hit. You're offering up a statement, made out of court, for the truth of that statement, i.e., the child was, in fact, hit. So, unless that child is available to testify to being hit, and to be asked questions by the other side, you won't be able to testify that your child was hit by your ex.
This is why lawyers HATE hearsay! This is one of the easiest, yet most difficult things we learn as trial attorneys. And so many lawyers and judges just don't understand the concept. Plus, there is no guarantee that we can convince a judge to understand and allow that testimony.
So, just understand the difficulties. See my earlier post about children testifying in court.
Children and Sexual Abuse: Marion County & Clinton County, Illinois
It's every parent's worst nightmare - thinking your children have been sexually abused, or, even more unbelievable, that your child is a sexual abuser. A wonderful resource is the Illinois Family Violence Coordinating Council. They have an office in each circuit to serve you and your family.
Check out their website here.
Check out their website here.
Children & Testimony: Marion County & Hamilton County, Illinois
Having children testify in court cases is a tricky and difficult decision. It just depends upon the child, and the situation. Illinois law says that unless a child testifies in a custody case, the court can only consider the child's wishes. Illinois law says that in an order of protection case, if the child witnessed the abuse, the child must testify. Otherwise, it's all hearsay, and the court cannot consider the parent's comments about what the child say as the truth.
So, parents ask what I recommend. And, when I tell them the kids have to testify, they always are confronted by the other parent, with statements like, "how could you do this to the kids?" "You're destroying those children!" "What kind of monster are you putting those kids in the middle like this?!" It's not an easy decision for any parent to make.
But, I've had a number of children testify in court, and when it's over, they were all glad they did. The court directed each side to stop questioning the kids about what happened, and what they said as a witness. And I always explain to the kids that their only job is to tell the truth. And once they tell the judge what happened, it's over - they don't have to talk about it, or answer questions about it any more. And they are relieved.
And in every case where the kids testified, the judge ruled in their favor. And the judge believed them. And as we all know, being believed, especially as a child, is really powerful, and important to our self-esteem.
So, as a mother, and a divorce attorney, unless I have a counselor that tells me the child will suffer some type of detrimental anxiety. or some setback, I encourage parents to allow their children to testify.
So, parents ask what I recommend. And, when I tell them the kids have to testify, they always are confronted by the other parent, with statements like, "how could you do this to the kids?" "You're destroying those children!" "What kind of monster are you putting those kids in the middle like this?!" It's not an easy decision for any parent to make.
But, I've had a number of children testify in court, and when it's over, they were all glad they did. The court directed each side to stop questioning the kids about what happened, and what they said as a witness. And I always explain to the kids that their only job is to tell the truth. And once they tell the judge what happened, it's over - they don't have to talk about it, or answer questions about it any more. And they are relieved.
And in every case where the kids testified, the judge ruled in their favor. And the judge believed them. And as we all know, being believed, especially as a child, is really powerful, and important to our self-esteem.
So, as a mother, and a divorce attorney, unless I have a counselor that tells me the child will suffer some type of detrimental anxiety. or some setback, I encourage parents to allow their children to testify.
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