Visitor Question

Can I sue my son and ex-wife for false allegations of assault?

Submitted By: Scott (Amarillo, Texas)

My 17-year-old son had been threatening students at his school, teachers, and myself, my wife and 9-year-old daughter. When he raised his fist at me I grabbed him by the shoulder and threw him outside. He falsely filed a police report saying that I choked him. I was arrested for “assault on a family member by impeding breath”, a 3rd-degree felony.

The arresting officer said he had taken photographs and had proof that I choked him. When we saw the photos, there were no marks on his neck. Only a small pinch mark on his collarbone from tossing him outside.

Due to being arrested I’ve lost several days of work, have spent approximately $5,000 in legal fees and $1500 to be bailed out of jail. I’m also fighting to keep my license to carry my firearm from being suspended.

He is now posting videos on his YouTube channel saying that I abused him. I have text messages saying that his mother told his girlfriend things as well. Questions:

  1. Is there a case here for defamation per se, since his false statements led to my being arrested and cost me a financial loss?
  2. Since he is still 17, can he be sued for defamation, or would I have to wait until he is 18? The time length would still be within the 1 year statute of limitations.
  3. After I was arrested, his mother (my ex-wife) called my employer claiming to be the bail bondsman, informing them of my charges. Then she called again claiming to be someone from the police department, telling them that they had a felon working for them. Can I also sue her for defamation?

Thank you for your time!!!

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Scott,

To give a complete answer to your questions, I will need to address both the legal and practical implications.

First let’s consider the legal questions . . .

Texas law defines defamation per se as words that “… are so obviously harmful to the person aggrieved, that no proof of their injurious effect is necessary to make them actionable.”

Here’s an example of a Texas case addressing defamation.

The importance of defamation per se is that it assumes damage based on the defamatory comments so that you don’t have to prove how the comments hurt your reputation.

Texas law recognizes false statements accusing someone of committing a crime as defamation per se. To win a case based on defamation per se, you must prove that the defendant acted negligently in making the defamatory statement.

Based on your question, it seems that you could have an actionable claim for defamation per se against your son if the charges are ultimately dropped.

Whether you have a similar claim against your ex-wife is less certain.

Truth is an absolute defense to any defamation claim, and based on your question, it sounds like your ex-wife called your employer and told him you’ve been charged with a crime. If all she did was relate the fact that you have been charged – which is true – then it seems unlikely you would have a viable defamation claim against her.

Regarding your son’s age, Texas treats age 18 as the age of majority. As such, a person under the age of 18 cannot sue or be sued in his own name. Unless your son has been legally emancipated, you could sue him only through a guardian or representative.

You are correct that the Texas Civil Practice and Remedies Code Section 16.002 establishes a one year statute limitations for a defamation claim. Once a person reaches the age of 18, he or she can be sued directly.

Now let’s address the practical considerations . . .

Suing your son or any other family member is a significant decision. Obviously, we don’t know the full nature of the relationship between you and your son, and you have to consider the impact suing your son could have on your relationship with him and other family members.

Also keep in mind that whatever damage has been done to your reputation could be made worse if the lawsuit results in the entire incident becoming public.  Whether you want to risk that is a question only you can answer.

You mentioned that your son’s accusation has cost you income and legal fees. Unless you could find an attorney to take a case against your son on a contingency fee, filing a lawsuit against your son will result in additional legal fees. Is pursuing the case worth the expense?

Further, unless you are bringing suit just to make a point, you need to consider if either your son or your ex-wife would be able to pay a judgment should you be successful with the case. If neither has the ability to pay a judgment, then what do you hope to gain?

The situation you face presents some very difficult choices – both legally and practically.  We wish you and your family the best however you choose to proceed.

Learn more here: Defamation of Character

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,

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