A series of audio recordings of apparently a ranting, cursing Mel Gibson have surfaced causing more damage to the reputation of the actor embroiled in a child custody battle and severely hampering his chances at prevailing.
The conversations were allegedly taped by Oksana Grigorieva, Gibson’s ex-girlfriend and the mother to their young child they are fighting over. The man on the tapes claimed to be Gibson repeatedly threatens physical violence, makes racist comments and verbally degrades the woman. (Click here to listen to one of the recordings. Warning: The tape contains unedited and graphic language.)
Cordell & Cordell attorney Angela Foy explains how these tapes threatening domestic abuse could hurt Gibson’s custody case, if the tapes are admissible as evidence, and what affect his behavior could have on the amount of support awarded to his child and ex-girlfriend.
How do these tapes being revealed hurt his custody case?
More than just demonstrating why substantial time may not be in the child’s best interest, evidence of domestic abuse does have serious legal consequences to a custody case. It is much more serious than just not being helpful to the custody case. It changes the starting point from which the judge considers the case.
The general presumption at the start of a custody case is that joint legal custody is in the child’s best interest. However, if the court has evidence that either party has engaged in abuse or interspousal battery, that presumption changes and instead, the court is required to presume that the parties will not be able to work together in the future.
If the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of domestic abuse, the court must presume that it is detrimental to the best interest of that child to award joint custody, or sole custody to that party. Further, the presumption may only be overcome by showing that the party that committed the abuse has successfully completed a certified treatment program and that it is in the child’s best interest.
Whether the allegations are true is still to be determined. The court in the custody case will know if Mr. Gibson is convicted of domestic abuse and whether a domestic abuse restraining order is issued. The burden of proof in the custody case is different than in criminal. The court must find by a preponderance of the evidence that he engaged in the abuse, which is different than beyond a reasonable doubt.
Assuming that the court finds that the allegations are true, instead of Mr. Gibson starting with the presumption that he should have joint custody and leaving the burden to Ms. Grigorieva to prove otherwise, the judge starts with the presumption that Ms. Grigorieva should have sole custody, and it is up to Mr. Gibson to show, by very limited means, why that is not in his child’s best interest.
The exact approaches to custody and placement determinations vary by state, so the exact legal consequences and the evidence needed to try to overcome the presumptions are going to be dependent on that state’s statutes.
Would recordings like this be admissible in court, in terms of proving that Mr. Gibson has anger problems and shouldn’t be left with the kids?
The recordings may or may not be admitted as evidence; they are hearsay, but they probably meet one or more of the hearsay exceptions. These exceptions include that the statements are an admission by a party, the statement is a present sense impression, the statement is an excited utterance, and the statements show the 10 existing mental, emotional or physical conditions. There also will likely be issues about the custody of the recordings and how they were obtained.
Regardless of whether the recordings are admitted into evidence in the trial of the matter, they will likely be considered. The guardian ad litem, if one is appointed in the case, is required to investigate whether there is any evidence that either party engaged in interspousal battery or domestic abuse. Additionally, the guardian ad litem must report to the court on the results of the investigation. As a result, the court will have indirect knowledge, if not directly hearing the tapes as evidence.
Would this have any bearing on how much child support he would have to pay? Would the judge be more sympathetic to his ex-girlfriend and want to award her more support?
The statements and alleged abuse would not directly link to an increase in child support. The court considers a number of factors in setting child support, but whether domestic abuse has occurred is not one. However, indirectly, they could lead to increased child support in a number of ways.
Most often, child support is dependent on the amount of time each of the parents spends with the child. The court assumes that while a parent is with the child, he or she is financially providing for that child. The less time the paying parent spends with the child, the more child support increases to provide that financial support. The allegations are very likely to affect the amount of time Mr. Gibson has with his children, and as a result, he is likely to pay more.
Many courts will recognize that the percentage standards should not be applied to child support payers with significant incomes. Instead, they provide a discount to high-income earners. For example, the standard child support percentage in Wisconsin where I practice is 17% of a payer’s gross income. However, the percentage guidelines state that if a payer’s gross monthly income is over $12,500 per month, he or she would only pay 10% on that amount over $12,500. Mr. Gibson is likely a high-income payer, however, the court may be less inclined to give him this benefit. Instead, they may order the full amount or order that the balance be held in a trust.
The support may be increased in other ways, too. The court considers the physical, mental and emotional health needs of the child. These alleged actions might give the court grounds to increase support to make sure that the child’s emotional needs dealing with these allegations are met. The court also has the right to consider other factors that it considers relevant.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.