Navigating past history in court: What to expect and how to handle it

Dealing with Allegations of Past Conduct in Child Custody Litigation

How do you deal with it if she wants to bring up ancient history and use it against you in court? My name is Brian L. Jackson. I am a Tulsa father’s rights attorney here with dads.law, where fathers are not disposable. I’m gonna talk to you guys about dealing with allegations of conduct, that’s old conduct, in current child custody litigation.

So, as a starting point, because anytime you’re dealing with child custody litigation it is a best-interest analysis, in theory almost anything’s relevant. Now, having said that, there are some rules and doctrines that come into place as far as evidence and as far as adjudication goes, that is in terms of what the court can actually use to make a decision, that control when and how a court should consider old incidents.

Res Judicata: Ancient History and No Do-Overs

As a preliminary matter, if you’re going to court on let’s say a motion to modify and she wants to bring up a bunch of crap that happened before you guys got divorced, and she’s now trying to modify the decree, generally speaking, that ancient history is what’s called res judicata, which is a fancy Latin way of saying no do-overs. So, the idea is, presumably she knew about this stuff when she went into the initial divorce, and either she brought it up, had a chance to litigate it, and the court ruled a certain way, or she didn’t bring it up, and when she had the opportunity, and she’s trying to save it up now, but either way, it wouldn’t be particularly relevant to a motion to modify, because the whole standard on a motion to modify is a material change in circumstance, and how can you allege a material change in circumstance after something that happened prior to the entry of the decree? It’s not a change in circumstance. That was the circumstance.

So, in that situation, it is probably inadmissible, although you would definitely want to raise the objection to be sure that the court doesn’t consider it anyway.

Bringing Up Past Incidents in a Divorce

But what about if you’re not dealing with that scenario, but let’s say that you’re in the initial throes of a divorce, and she wants to bring up some crap that happened 10 years ago into the marriage? Well, it could potentially come in. As to the weight it’s going to be given, well, probably less weight than if it was a recent incident. The court will probably look at it in the context of what did she do and what did you do? Following the incident.

I mean, if she says you smacked her in the face 10 years ago, and she’s never filed criminal charges, she didn’t file the protective order, she didn’t file the… She didn’t report it to DHS, she didn’t file for divorce, and there are no photographs or evidence of any injuries, the court is probably not going to give it a whole lot of weight. But that’s not guaranteed. It could also potentially count against her too if the court believes she was smacked in the face because it’s like, well, okay, you didn’t do anything about it to protect your child. So if there was domestic violence, one of you engaged in domestic violence and one of you failed to protect the child from domestic violence.

Dealing with Old Criminal Conduct

That’s not necessarily helpful to your cause, though, because it’s still a black mark against you. Old criminal conduct, a lot of times the way you deal with that is it’s a mea culpa situation. It’s like, yeah, I screwed up, I’m not doing that now, I haven’t had a problem in this many years, etc., etc., etc.

If you are dealing with those types of situations, the best bet is you need to talk to a good lawyer because how you handle it really depends on the situation and how old it is. But typically these types of allegations, the older they are, the less weight they have. And a good lawyer can help you deal with that in court in a way that doesn’t seriously damage you in most instances.

Contact Dads.Law for a Low-cost Strategy Session

And one place you can find a good Oklahoma child custody lawyer is at Dads.Law, where fathers are not disposable.