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Ask Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 100053
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My husband and s ex wife are in a three year custody battle

Customer Question

My husband and his ex wife are in a three year custody battle over their two adopted children and one biological child. His ex wife has filed false police reports, made false allegations that she knew were false and did not withdraw and knowingly made false reports to cps to hurt our case. As recently as yesterday she had her attorney report false information to a judge to gain access to their oldest child, who is 13 and she has had arrested twice after inciting behaviors out of this emotionally disturbed child. Can we seek action against her for her willfully deceitful and defaming actions?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Short answer: Yes.

Long answer:

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

Now, parties that have been harassed/lied about by her do have a course of action for the following then, arguably, depending on what exactly she did/may have done:

DEFAMATION - The elements are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. Dillon v. City of NY, 261 AD 2d 34 - NY: Appellate Div., 1st Dept. 1999.

FALSE LIGHT - the plaintiff must prove the following elements: The defendant published some information about the plaintiff. The information must portray the plaintiff in a false or misleading light. The information is highly offensive or embarrassing to a reasonable person of ordinary sensibilities. The defendant must have published the information with reckless disregard as to its offensiveness.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Howell v. New York Post Co., 81 NY 2d 115 - NY: Court of Appeals 1993.

ABUSE OF PROCESS - Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Board of Educ. v Farmingdale Classroom Teachers Assn., supra, at p 403).

MALICIOUS PROSECUTION - The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice (see Martin v City of Albany, 42 N.Y.2d 13, 16; Broughton v State of New York, 37 N.Y.2d 451, 457, cert den sub nom. Schanbarger v Kellogg, 423 US 929; 2 NY PJI 798 et seq.).

So depending on what actually she had done, the above may apply (some or all).

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