There is a pending investigation by DSS against my ex husband for allegations of neglect concerning our things our daughter has stated while in counseling. I had to take my daughter to DSS to be interviewed and I was allowed to be present with her in the interview and at times was a party to the conversation, I recorded the conversation because it was my understanding that since my daughter is a minor and I was a party to the conversation that it would fall under the “On-Party Consent” law that NC is governed by. Now I am finding out that DSS has read the report to her father and told him what she said, however, what they told me they read to him is not an accurate representation of my daughter’s statements to the DSS caseworker that interviewed her and I have this recording that proves it, but I don’t know if it’s of any use or not. I want to take this recording to DSS and let them hear again what my daughter actually said and request that they modify their report to accurately reflect what my daughter told them because it’s a matter of them reporting that she stated she feels safe while at her dad’s verses the fact that she never at any time in that interview stated any such thing, to the contrary, when asked if she feels safe at dad’s house, she stated “I don’t know how to say this…” and the caseworker told her it was ok, just to say it the best she could and she repeated herself, that she didn’t know how to say it, so then he proceeded to ask her if it was like sometimes she doesn’t feel comfortable and safe and she confirmed that was how she felt. She also said a lot of other concerning things that I don’t know if those statements even made it into the report for her statement. I’m not sure where to go with this. Her dad is accusing me of making false allegations regarding the fact that I asked for an ex parte dvpo and was granted that ex parte order and, while it got dismissed because I didn’t word the complaint in such a way that the complaint rose to meet the legal definition of domestic violence, he is telling me that I need to propose an arrangement for make up time for lost visitation and that DSS told him that our daughter said she does feel safe with him, and if I don’t offer make up time he is going to have his attorney come after me for whatever remedies can be sought on his behalf under the law. I need to be able to prove that what DSS has in that statement report from our daughter’s interview is not an accurate representation of her actual statements to DSS because I don’t feel comfortable giving him make up time and I didn’t make false allegations, my complaint, as written, just didn’t meet the mark to be heard. So my questions are these:
- Do I owe him make up time?
- What recourse can he possibly have in his threat to come after me with his lawyer regarding this situation?
- Is the recording I have of the interview that my daughter and I were in with DSS admissible in court if he does try to come after me?
- Is this recording worth taking to DSS and requesting that they revisit their report of what they claim my daughter stated to them?
(1) No, you do not owe him make-up custody/visitation time unless you have a court order that specifically allows for this.
(2) He could say that you have been withholding the child from him and if the judge determined it was not warranted, then the judge could award him additional custody/visitation time. Your best plan is to follow what DSS/CPS is recommending in regards to custody and visitation. Judges tend to side with DSS/CPS.
(3) The recording is likely not admissible in court unless your daughter and the social worker are in court to testify about what they said. Otherwise it is hearsay. But you can still use the recording to show the social worker that wrote the report that he/she is wrong about what was said and perhaps he/she can issue an amended report.
(4) If you believe the social worker that wrote the report did not restate an accurate representation of what was said in the interview, then you should go to the social worker and/or his/her supervisor to have it corrected. A report such as that could be entered into evidence at a custody trial and the judge would rely on the report.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
The only reference our custody agreement/court order makes to make up visitation time is in the event that the child is too sick to attend visitation then we should work together to make arrangements for make up time. With that being said, I do not feel that I would need to offer to make up time missed because of an ex parte protective order that was granted to me. It was dismissed and I have returned to sending her to him for their scheduled visitation and so I am not withholding her and never was, not illegally. I was told by the court that my motion for dvpo was being dismissed based on the fact that my complaint, as written, did not meet the legal definition of domestic violence and that I chose the improper avenue and needed to pursue another avenue for seeking resolve for my concerns. I am meeting with CPS to further discuss my concerns for our daughter’s statement not being accurately reflected in their report to the other county and hope that will bring some relief in that regard. If you have any advice regarding that meeting please let me know. Thank you.
It sounds like you are not required to provide make up visits due to an ex parte domestic violence protective order since the order only specifies make up visits for when your child is sick, and this was not the case when the ex parte order was entered.
In your meeting, make sure you present the relevant portions of the recording and be insistent that an accurate report be issued.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.