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    Default Can I Use Pre-Divorce Evidence in Post-Divorce Custody Battle

    My question involves a child custody case from the State of: Mississippi

    I was told by my attorney that I could not use any evidence that happened during the marriage if I wanted to modify custody after the divorce. Is this true?

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    Default Re: Can I Use Pre-Divorce Evidence in Post-Divorce Custody Battle

    Quote Quoting iknowalittlebit
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    My question involves a child custody case from the State of: Mississippi

    I was told by my attorney that I could not use any evidence that happened during the marriage if I wanted to modify custody after the divorce. Is this true?
    Generally yes its true. Any evidence from prior to the divorce could/should have been addressed in the original custody determination. Only things that have happened since then can be addressed in a custody modification case.

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    Default Re: Can I Use Pre-Divorce Evidence in Post-Divorce Custody Battle

    Thank you for your quick response. That is a shame, because she has a history of threatening suicide and other abusive language. I have dozens of tapes with her going nuts. The behavior stopped for a bit, but has increased a lot in recent times. Once, she was even taken to a mental ward by ambulance when she told police she was suicidal. I would have liked to use those tapes and that event in a future custody battle to show this is not knew behavior and it is a pattern.

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    Default Re: Can I Use Pre-Divorce Evidence in Post-Divorce Custody Battle

    Quote Quoting iknowalittlebit
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    Thank you for your quick response. That is a shame, because she has a history of threatening suicide and other abusive language. I have dozens of tapes with her going nuts. The behavior stopped for a bit, but has increased a lot in recent times. Once, she was even taken to a mental ward by ambulance when she told police she was suicidal. I would have liked to use those tapes and that event in a future custody battle to show this is not knew behavior and it is a pattern.
    That ship has sailed. You stayed with her during these episodes, no? That proves to the court that you weren't too concerned about such behavior at the time.

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    Default Re: Can I Use Pre-Divorce Evidence in Post-Divorce Custody Battle

    As llworking suggests, it's more than that. If a party chooses to enter into a settlement agreement resolving a custody dispute they are quite reasonably deemed to have done so with full knowledge of the facts. Similarly, if the parties litigate, the parties will either choose not to introduce that type of evidence at trial, in which case they bear responsibility for that choice, or they will introduce the evidence and it will have already been considered by the court in issuing the current order. The court wants to know what has changed since the last stipulated custody order or judgment, not to revisit matters that the parties either did or should have raised during prior custody litigation.

    Here, the allegation is that a parent has had episodes of severe mental illness, and perhaps the evidence would show that at the time of her episodes she was incapable of providing appropriate care for a child. The fact that the other parent did file for divorce at the first sign of mental illness does not render those episodes irrelevant to a custody determination. However, where the issue of mental illness is not raised, or is raised and considered by a court, you're not going to succeed in reopening a case by arguing, "I should have raised these issues before and, although I have no evidence that mental illness remains a relevant issue, I want to modify custody based upon what happened a long time ago, before the entry of the last custody order."

    If there are episodes of mental illness since the last custody order, of a sufficient kind and magnitude to raise issues of whether the present custody and parenting time arrangement should continue, then a parent can seek relief based upon that new evidence. Tapes surreptitiously taken during the marriage, and held in reserve as a secret weapon, aren't going to do it.

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