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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 19624
Experience:  B.A.; M.B.A.; J.D.
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My daughter ex husband is challenging custody 4 yrs after

Customer Question

my daughter ex husband is challenging custody 4 yrs after their divorce. Our daughter and granddaughter live with my husband and me since they split up so she can attend college. Her ex agreed to this in the divorce and according to my daughter she told him during the marriage that my husband had hep c. They have not discussed it since the divorce. In response to my daughter's request to dismiss her ex cited that my husband has hep c and prepares meals for the family with a concern that the child is in danger of contracted the disease. My daughter feels her ex did this to make her look bad and taint the magistrate's opinion. My husband is considered cured of the disease with the new treatment and has many labs supporting a neg result for hep c. Also the CDC is clear that hep C cannot be contracted from casual contact, food or water. Did his attorney have a responsibility to provide accurate medical facts about how the disease is transmitted? And has the ex and or his attorney committ
Submitted: 2 years ago.
Category: Family Law
Customer: replied 2 years ago.
Did his attorney have a responsibility to provide accurate medical facts about how the disease is transmitted? And has the ex and or his attorney committed defamation per se against my husband by making a claim not based in medical fact not to mention he no longer has the disease?
Expert:  Phillips Esq. replied 2 years ago.

The Attorney has ethical and professional obligation to be truthful to the tribunal. However, whether “Hep C” can be contracted from casual contact and thus whether your husband is contagious and danger to the child would be matters for medical Experts hired by both parties to tell the Court, to educate the Court on. In any event, the Attorney did not commit defamation against your husband even if the information to the Court is false because the information is provided to the Court, a privileged party entitled to receive the information.

In order to prevail in a defamation suit, one ("you") must be able to prove all of the elements of defamation. Generally, you must be able to prove (1) that a defamatory statement was made against you; (2) that there was a unprivileged publication of the statement to a third party; (3) if the defamatory statement is a matter of public concern, fault amounting at least to negligence on the part of the publisher—this would not apply to you if you are not a public figure; (4) then finally you have to prove that you suffered damages as a result of the defamation. As you can see, your husband would not be able to prove all the elements of defamation and thus cannot prevail in the lawsuit. Nonetheless, the Court may take action against the Attorney if the Attorney lied to the Court. However, making a statement that someone has Hep C that may be transmitted to a child is not a lie, but a statement that can be rebutted by a medical Expert.

Customer: replied 2 years ago.
Since my husband and I are healthcare professionals we always find incorrect medical information very irritating not to mention the normal emotions that go with matters in Family Court. The ex and his SO are in professions the CDC considers high risk for contracting (and/or spreading) Hep C and should possess knowledge regarding transmission. If they didn't behave in a misleading fashion and believe what they told the attorney then they are some scary people working with the public. I assume it would be alright to say the ex may have Hep C too. lol Thank you for explaining things so clearly.
Expert:  Phillips Esq. replied 2 years ago.

You are quite Welcome! and thank you very much for your understanding.

Have a wonderful day!