Is an affidavit admissable in court re: home enviroment?


#1

I just found out from someone who was living in the same household as my son’s father and his wife that the environment was not what it should be.

She mentioned that my son is neglected when he is at his fathers. All he does over there is play the Wii and DS and watch TV while his father plays his video games. She also mentioned that my son doesn’t get bathed when he stays the weekend there and she also mentioned that the parents don’t take baths on a daily basis ( and i have even questioned this and brought this to my son’s father and his wife’s attention via email but they denied it). ! She also mentioned that my son’s father was using marijuana every day (before work, at lunchtime and after work) but he has now quit due to a court order drug testing. She also mentioned that the wife has been in and out of mental hospitals using xanax and other pills which she is obtaining illegally and is always having more than a few glasses of wine or beer before going to bed each night (this was a little shock to me, but she did seem a little off to me through her emails and meetings). She also mentioned that the wife was physically abused, kicked and had bruises to show for it so the wife kicked my son’s father out of their home and the wife changed the locks because she was scared for her life. Of course she didn’t press charges because he already has 2 domestic arrests on his record from assaulting her, but she never pressed charges). She is obvious a victim of domestic abuse and thinks that next time it won’t happen, etc. I was also told that the house was dirty and disgusting - diapers piled up, poop on the wall, dirty clothes overflowing, dirty dishes over flowing in the sink, etc. I was also told that my son cried every night at bedtime and that his father didn’t console him at all, just yelled and him and let him be. I was also told that my son’s father was suppose to take paxil, but never did…

My question is, if she leaves the state and is unable to testify, will the judge accept a written affidavit notarized by an attorney? I am not sure when our next court date is and it worries me because i am very concerned about my son’s safety in this environment. Is there anyway that I can have the wife tested for her drug use and her mental situation?

Thanks for the advice and direction!

Thanks for the advice and direction!


#2

Affidavits are usually not admissible since the opposing party has no opportunity to cross-examine the witness. Some local rules have exceptions to this rule, and there are other exceptions pursuant to the hearsay rules when the witness is unavailable. You should speak with an attorney in your area to determine if any of these are relevant in our case, but I would strive to have all my witnesses present and available on the hearing date.

Yes, you can ask the court for a drug test. You should include a motion for drug testing, and have it heard at the same time as the custody action.