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Abuse Allegations In Family Law
Manipulating The Courts Through Allegations
Falsely accusing your former spouse of abuse, whether domestic or child abuse, is a common tactic in the Family Court System. Don't be surprised if your ex throws this one at you. Given the current political and social attitude towards child abusers. It has become a witch hunt to eradicate these animals from our society. Because you are going through a divorce the chances that this tactic will be used are very good. The reason is simple: "If you are accused of being an abuser, then the kids will go to mom and you will pay through the nose to support her."
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Approximately 28 States carry penalties in their civil child protection laws for any person who willfully or intentionally makes a report of child abuse or neglect that the reporter knows to be false.1 In New York, Ohio, and the Virgin Islands, making false reports of child maltreatment is made illegal in criminal sections of State code.
Twenty States and the Virgin Islands classify false reporting as a misdemeanor or similar charge.2 In Florida, Tennessee, and Texas, false reporting is a felony, while in Arkansas, Illinois, Indiana, Missouri, and Virginia, second or subsequent offenses are upgraded to felonies.
In Michigan, false reporting can be either a misdemeanor or a felony, depending on the seriousness of the alleged abuse in the report. No criminal penalties are imposed in California, Maine, Montana, Minnesota, and Nebraska; however, immunity from civil or criminal action that is provided to reporters of abuse or neglect is not extended to those who make a false report.
Eleven States and the Virgin Islands specify the penalties for making a false report.3 Upon conviction, the reporter can face jail terms ranging from 30 days to 5 years or fines ranging from $200 to $5,000. Florida imposes the most severe penalties: In addition to a court sentence of 5 years and $5,000, the Department of Children and Family Services may fine the reporter up to $10,000. In six States the reporter may be civilly liable for any damages caused by the report.4
To access the statutes for a specific State or territory, visit the State Statutes Search.
- Arizona, Arkansas, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, and Wyoming.
- Arizona, Arkansas, Colorado, Illinois (disorderly conduct), Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Missouri, New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Virginia, Washington, and Wyoming.
- Connecticut, Florida, Louisiana, Massachusetts, Michigan, Oklahoma, Rhode Island, South Carolina, Texas, Washington, and Wyoming.
- California, Colorado, Idaho, Indiana, Minnesota, and North Dakota.
Dealing With Allegations
Of Sexual Abuse
Allegations that a parent or some other person has been sexually abusing a child should always be taken very seriously by that child's parents. If allegations have been made concerning the sexual abuse of your child, here are some things that you should do.
Investigation Of The Abuse:
Have your child seen by an expert who is highly qualified to determine whether your child has been sexually abused. (See below on how to qualify an expert). Insist that all "counseling" or investigative session between your child and the expert be videotaped or at least recorded.
If your child underwent a medical examination concerning the abuse, make certain that the results were confirmed with a colposcopy examination by a pediatrician who is knowledgeable about child abuse issues. A colposcopy is a magnification and photographic device for examining the vagina and cervix.
Obtain copies of all records concerning the EARLIEST statements made by the child about the abuse. If there are no, records, get sworn affidavits from the persons to whom the earliest disclosures were made.
Investigate the background of all the persons having contact with the child - especially those persons living with the child. Divorce and custody actions, sexual relationship problems, abuse experienced by either parent, etc., may provide some insight for the claims of abuse.
READ, READ, READ, all the materials that you can concerning child sexual abuse.
Child Abuse Experts
Child abuse experts may be licensed psychologists, social workers, or psychiatrists. However, the expert should have specific training in child abuse matters. One of the first things you should do is get a copy of the expert's resume and a list of any publications made by the expert.
You may wish to have the expert deposed to determine the extent of the expert's experience in diagnosing and treating molested children and the extent of his or her ongoing education in the field. Find out what data the expert is relying upon and the names of the people the expert recognizes as leaders in the field.
The expert should have handled numerous cases in which he or she found that the child was molested as well as cases in which he or she found that the child was not molested. If the expert comes to the same conclusion in the vast majority of the cases he or she has handled this may be a clear sign that the expert has a bias.
The expert should be highly familiar with "peer-reviewed empirically based" literature in the field. It is a good idea to find an expert who is a member of multi-disciplinary organizations that are active in unbiased research on the area of child sexual abuse. Find out if the expert treats children, who have been molested, are molesters, or non-abusing parents of molested children.
Finally, you may wish to hire another expert to analyze the expert's knowledge and abilities.
You Think Someone Has Abused Your Child
Remember that revenge is not your primary goal. Keep your child's best interests in mind at all time.
Get help from a therapist or support group to deal with your feelings. Do not feel hurt if your therapist or attorney questions your motives for making child abuse allegations.
It is in your child's best interest to have your motivations thoroughly questioned. Quite often, children who misinterpret their parent's actions can make allegations of abuse. Often these children make abuse allegations to make one parent "happy" without recognizing the consequences of the allegations. Once an allegation is made, children often undergo an investigation process that can create memories of abuse that never happened.
Do not discuss the allegations of abuse with friends or family. Do discuss your concerns with your attorney and your therapist - these conversations are privileged. Discussions with anyone else could get you sued for defamation of character.
If the other side seriously challenges your credibility, ask the court to appoint a Guardian Ad Litem to represent your child's interests. Make certain that this attorney has specialized training in sexual abuse cases.
Discuss with your attorney and your child's therapists about the pros and cons of allowing the other side to have supervised contact with your child during the investigation stages. If the accused molester is your child is the other parent, remember that children who lose total contact with one of their parents can be just as adversely affected.
If Accused Of Abuse
If the police question you, remember that you have the right to remain silent and the right to an attorney.
Discuss with your attorney whether you should talk to child abuse investigators without your attorney being present. If you do talk to the investigators make certain a recording is made of the conversation.
Keep focused on your child's best interests. Many child abuse allegations are made in good faith. Understand that a parent who even suspects that sexually abuse of their child has a duty to investigate that allegation. Often these investigations will show that someone else is molesting your child.
If you have solid evidence that your accuser made up the abuse allegation, seriously consider suing that person (see below) for defamation of character or intentional infliction of emotional distress. Discuss these options with your attorney. Also, discuss with your attorney whether you should sue the other side's expert for professional malpractice.
Strongly consider only having supervised visitations during the investigation stages of the allegation. The person who supervises the visitations may be your best witness in clearing you of the allegation.
Discuss with your attorney the pros and cons of taking a lie detector tests. More and more courts are admitting these tests. If you do decide to take the test, make certain that your attorney hires the person who will administer the test. That way the test results may be considered privileged if they are negative.
First, you must fully understand that when defending abuse cases the accused is guilty until proved innocent. It is arguably the one crime or tort where the accused must literally try to prove a negative. To do so, please know that most judges and juries will err on the side of caution - on the side of a woman's or child's abuse outcry.
There are three types of accusers:
While only 2%-5% of abuse allegations are false; ones made in bad faith with malice aforethought, another 60% or more are unfounded, or without foundation. It is essential that your defense team be adept at adjoining science with the law.
In other words, your case will require an expert, or experts to work with your attorney because most attorneys do not understand what source misattributions are, or what other conditions could cause bilateral retinal hemorrhages, or the significance of male propensity testing in an abuse case.
It is essential you choose the correct attorney(s) to litigate (not mediate) your case(s) in juvenile, family, criminal, and/or administrative law court. You may also need a forensic trial expert consultant to work with your litigator(s) and help she/he/them with questions on Direct and Cross Examination of all witnesses, especially experts.
Impeaching a young child's outcry of sexual abuse cannot be done alone by an attorney without an expert reviewing and critiquing the child's forensic interview on DVD/Video/Audio/Transcript, therapists' session progress notes, medical rape exam report, and CPS/Police Intake notes, reports, et al.
Lawyers can only conduct a cross-examination, and recross, of adverse witnesses in court. They cannot issue reports that can come into evidence on the record and cannot testify in court as experts to reasonable degrees of scientific certainty.
Make no mistake. In cases of, "he said" - "she said" - and/or what a young child said - with no proof or evidence, your win or loss in court may very well come down to a battle of the experts. Moreover, they are not all created equal. However, take solace in knowing that an aggressive and proactive defense team, and strategy, can intimidate and force the prosecution/plaintiff/petitioner into a settlement; one that not only can clear your good name, but also afford you normal parenting time with your child(ren).
You should realize the impact that child abuse allegations, and/or charges, may have on your life. As a suspect in an abuse case, you may:
- Have your child or children removed from your care;
- Lose custody or visitation rights;
- Be arrested and jailed;
- Have your future career prospects ruined; and
- Have friends and/or relatives turn against you;
If it is a sexual abuse charge, add to the list having criminal charges filed against you, your name added to a Central Registry of potential child abusers, labeling you as a sex offender. In some states, even if innocent, your name can still be added to a list simply because of the allegation.
This is all before you have been convicted, possibly not even charged with anything, and is supposedly presumed innocent until proved guilty. You may find yourself fighting charges in civil, criminal, and juvenile court, sometimes all at the same time. If convicted, you may receive a sentence for up to life in prison depending on the charge and the state in which you are convicted.
To make matters worse, case law exist to allow hearsay evidence as admissible in cases of child abuse. What this means is that the standards of evidence required for common criminals may not apply to child abuse cases. It is important to deal with the issue of child abuse in our society. However, denying individuals their Constitutional rights and due process of law to that end is not the way.
What About The Children?
You should be aware of the problems the child in an abuse case may face. They may be separated from you for long periods, even years is not uncommon in these cases. They may also be subjected to various physical, and/or psychological examinations.
During the interview process, the children may be turned against you. Eventually come to believe that something really did happen. Note the 1980s McMartin Preschool case where the "ethical" professionals guided the interrogation of the children to build their case. These are the same tactics used in POW camps as psychological warfare. All in the "best interest of the child" mind you! Poorly trained interviewers often "coach" a child into giving the answers they want.
The child may become confused by the leading format of the questioning and try to give the answers they believe the authority figure wants to hear. The child becomes labeled as an "abused child" and may be subjected to psychological treatment, furthering their belief that something must have happened.
What You're Up Against
The legal system is set up to protect the child at all costs. The theory in general is, if a judicial mistake is made; let it be on the side that assures the safety of the child. This is a fact that can greatly hurt you and your child.
From the moment an allegation is made, you will generally be treated as guilty and separated from your child. Most interviews are conducted with the assumption that something did occur. An unbiased investigator is rarely seen. Most interviewers are trained to believe that children do not lie, especially in divorce and custody situations.
The Court tends to believe the "experts", even if the "expert" is a poorly trained social worker or a physician who has never had experience with an abuse case. A small child's testimony about an event that supposedly occurred up to several years before your trial is enough to convict you in many states, even if no other evidence of abuse exists. The attitude of the public and the media towards an abuse suspect is usually hostile and prejudiced in a trial situation.
THINK BACK ABOUT YOUR OWN FEELINGS WHEN YOU READ ABOUT A CHILD ABUSE CASE. THIS IS WHAT YOU ARE UP AGAINST NOW!
Assessing Your Situation Today
- Have the allegations become worse since they were first made?
- Does my attorney have a successful defense record in handling child abuse cases? How much experience does he/she have in dealing with this type of case?
- Have I arranged for experts who are nationally recognized in the area of child abuse to testify for my defense?
- Have I taken aggressive, effective action in destroying these allegations or have I just been reacting to what the other side is doing?
- How can I improve my situation TODAY?
Advice For The Accused
- Do have all interviews with the child videotaped.
- Take all allegations of abuse very seriously from the moment it occurs.
- Do hire an attorney who believes in your innocence.
- Do have the child examined by a pediatrician or (if appropriate) a psychologist of your choosing, if physical or sexual abuse is alleged.
- Do not rely on the legal system to clear you, even though you know you are innocent.
- Do not talk to the press.
- Do not take a polygraph or lie detector test.
- Do not take "good advice" from people around you who mean well, but know nothing about this type of problem.
- Do not hire an attorney who has not won this type of case in the past.
- Do not make any Plea Bargains or legal decisions with the prosecutor without careful consideration. No matter what you are told, you may not realize the implications of such action.
REMEMBER THAT YOUR ACTIONS WILL AFFECT THE REST OF YOUR LIFE AND THAT OF YOUR CHILD'S!