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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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Hi Dimitry, Okay, one more and then some shut eye. How are

Resolved Question:

Hi Dimitry,
Okay, one more and then some shut eye. How are you at appellate law.???

Ex-wife in her appellate brief includes inferences that paint a distorted picture. The appellate court prolly won't give two hoots about her inferences, but still we would like to include a transcript that contains statements made by the GAL in order to rebut or clarify the matter.

There are three problems:
1. This transcript is NOT from the custody trial proceedings. It is from some proceedings in January of 2009 and before a different judge.

2. While the transcript is physically located in the case file, it was not ordered to be a part of the custody trial nor was it entered into evidence for that trial.

3. The statements of the guardian ad litem from the January 2009 transcript are not under oath. The GAL spoke to the judge, counsel for both parties spoke to the judge, the parties themselves spoke to the judge, and then the judge entered orders.

4. The statements made by the GAL pertained to a letter and conversation he held with the "then" parenting counselor Dr. XYZ. I don't know if this wold be considered hearsay.

We would like to file a motion asking the appellate court for permission to include the transcript. Are there any legal grounds that we can cite in the motion.
Submitted: 5 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 5 years ago.
Thank you for your follow-up and for again requesting me.

Just one question please--is this appeal "de novo"?
Customer: replied 5 years ago.
What is "de novo".
The custody/visitation hearing was held before and decided on by a judge. Not a jury trial.
As to the appeal, the ex-wife is asking the court for a new trial.
Does this help?
Expert:  Dimitry K., Esq. replied 5 years ago.
Thank you for your follow-up.

My apologies on the delay.

:De novo" means "anew", that is, a new trial with new evidence that would disregard the past decision and permit the court to hear the claim as if the original hearing did not take place.

Getting the new information in would be tough. It would be considered hearsay simply because it was never corroborated or stated under oath or at a deposition. The best claim is to try Section 4-1, as that is the "catch-all" provision for evidence. Here you are literally claiming that since this possible evidence may make one claim or fact more relevant than before, and this fact is important to trial, the court should at least consider permitting it into evidence. This is very much a long-shot, but it is possible.

Edited by Dimitry Alexander Kaplun on 12/1/2010 at 7:59 AM EST
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