Legal Question in Civil Litigation in California

Is it reasonable for me to file a civil lawsuit? This is the situation: I've been in family court with my ex boyfriend for child custody issues. He and his attorney filed ex- parte orders without having any legal paternity. The judge at the time was very new and he granted their request. My ex then took my child out of my care. When we arrived at court to address the issue I asked the judge if he had legal right to my daughter ect. He reviewed the file and learned he had made a mistake. He admitted on the record he made a mistake. There was no declaration of paternity. Or birthcertificate signed. My question is can I sue my ex for illegaly taking my baby at that time? Or is this unrealistic? There are a lot more details but this is the main issue. Thank you .

Asked on 6/13/12, 3:58 am

2 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

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You can sue, but you can't win.

Your ex's actions weren't "illegal" as you claim, since there is no law that expressly forbids him to have custody and since his actions were authorized by the court. That the court made a mistake does not make it illegal to follow the order while it was in effect.

Seeking the order also can't be the basis for a judgment against him, since filing papers in court is protected by the litigation privilege.

Even if you could hold your ex liable for his actions, you could only do so within the existing family law case and not in a new lawsuit.

I'm sorry I can't be more encouraging.

Answered on 6/13/12, 1:15 pm

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