Custody Cases: Protecting Children from Sexual Abuse
Published by Arlaine Rockey, Attorney At Law
Why Aren’t the Children Protected?
When allegations of child sexual abuse arise during a custody case,
unfortunately, the professionals who are involved often look first to question
the motives and veracity of the protective parent rather than to what they can
do to protect the child. Most people think that making allegations of sexual
abuse is a sure way for the protective parent to win the custody case. Nothing
could be further from the truth.
There is a backlash in full force in our legal system against protective
parents. “Protective parents” are those acting to protect their children
from abuse, be it physical or sexual. Protective parents are, much more often
than not, mothers. The Fathers Rights Movement has been built on the myth that
evil mothers have lodged false allegations of sexual or physical abuse or
domestic violence against millions of fathers just to deprive and alienate them
from their children.
All states have laws that make it mandatory that people who suspect child abuse
or neglect must report it to Child Protective Services (CPS). CPS then must
investigate. If there is a custody case ongoing, it is customary for CPS to be
highly skeptical of sexual abuse allegations. Perhaps worried about being pawns,
CPS generally just doesn’t want to get involved. This aversion, unless there
is clear medical evidence of or the child's clear disclosure of sexual abuse,
often manifests itself in the allegations being unsubstantiated, which makes the
CPS investigator a nice witness for the abuser.
Thousands, if not millions, of dollars have been paid to psychologists all over
this country who perform court-ordered custody evaluations that label protective
parents, sometimes slyly using the key words without the title, as perpetrators
of Richard Gardner's bogus Parental Alienation Syndrome (“PAS”), and who
even misdiagnose them with real mental problems like Borderline Personality
Disorder or Munchausen’s Syndrome. These custody evaluations, and their
recommendations, are used to force protective parents into unfavorable custody
settlements or to fully divest them of custody, doing the unthinkable, giving
custody to the abuser.
Misled or desperate protective parents too often consent to the court
appointment of a Guardian ad litem (“GAL”), often an attorney, for the
children. It sounds like a great idea. Give the children their own attorney who
will investigate the case and advocate for the children’s best interests.
However, all too frequently these attorneys, often well-meaning volunteers, are
not experienced in handling cases involving abuse or domestic violence. When
faced with abusers who are well-spoken and financially secure wearers of suits
and ties, GALs, much like judges, find it hard to believe that these
professionals could possibly be abusers. Too many mothers in their desperation
to protect their children act a little crazy. They generally make a lot less
money than their ex-husbands, which also apparently means they offer less
security for their children. If the GALs do not believe the abuse allegations,
these protective parents are at risk of having the GAL recommend that the
fathers get custody.
Like the custody evaluations, GAL recommendations also are used to force
protective parents into unfavorable custody settlements or to fully divest them
of custody, again, doing the unthinkable, giving custody to the abuser.
This reality sounds unbelievable, even crazy, but it is happening all over
this country. Why is it happening? Some people swear that judges and lawyers are
being paid under the table to take children from protective parents. Others say
that federal child support enforcement money, used in part to give legal advice
to fathers, is being misused to influence and possibly pay lawyers and judges,
maybe even psychologists, who help fathers win custody. Perhaps the reason is a
lack of training of judges, lawyers, GALs, psychologists, and Child Protective
Services workers about how to investigate sexual abuse allegations and about the
characteristics of the abused and the abusers. Maybe it is because sexual abuse
is so despicable, that people just do not want to believe it really happens.
Whatever the reasons, protective parents fighting to protect their children now
are stuck with this reality, and the best thing they can do is try to find an
attorney highly experienced with these issues and navigate the minefield.
Navigating the Minefield[2]
I tell my clients that they cannot afford to risk more problems by being an
activist to change the world during their custody cases. After the case is over,
there will be plenty of time to do the important work of organizing coalitions,
seeking publicity about damaging judges and unjust outcomes, and trying to
change the law and the reality. Right now, while seeking a support group is a
good idea, they, and you, need to focus on what you can do to maximize the
chances for success in your custody case.
Custody cases involving sexual abuse allegations become very expensive. Although
there is a chance, if you prevail in your custody case, that the opposing party
might be ordered to pay or reimburse your attorney’s fees, generally you are
going to have to advance your litigation costs, and possibly risk having to pay
attorney’s fees to the opposing party should you lose. Not only do you have to
pay for an attorney, unless you are lucky enough to find a legal aid attorney to
take your case, you also will have to pay for other costs such as expert
witnesses, psychological evaluations, copies of medical records, and
depositions. Underlying everything suggested in this article is the supposition
that you can find the money to pay all litigation costs either yourself or
through your family, friends, credit cards or loans.
Your goal is to protect your child or children[3] from being sexually abused. In
a custody case, this translates into the abuser hopefully at least getting
supervised visitation if not therapeutic visitation or none at all for a while.
The sooner you can get a court order limiting the abusers access to the child
the better. Most states have laws allowing the Court to enter an emergency
temporary custody order to protect the child from abuse, and also there is
usually the option to apply for a domestic violence temporary restraining order
to protect the child from sexual abuse. Deciding which immediate option to use
should be discussed, as with all the other possibilities mentioned in this
article, with your attorney. It is best to go to Court as soon as possible for a
temporary order either stopping visitation or making it supervised until the
sexual abuse allegations can be investigated by CPS, doctors, and a forensic
psychologist.
Chronological History
To prepare for your case you should create a detailed chronological history of
all of the things that have occurred that might be evidence of sexual abuse to
give to your attorney.[4] This history should include anything that might be
relevant to the possible sexual abuse, such as:
Also write down other relevant information such as:
Document, Document, Document
Throughout your case, you need to document, document, document. Take photos of
any injuries and of anything else you can document, for example, the child
dressed by abuser in provocative, or age-inappropriate clothing. Keep all
physical evidence, which is anything you can touch, such as soiled underwear
(put it in a ziplock bag), objects child has used sexually, provocative or nude
photographs that the abuser has taken of the child, pictures the child has drawn
that seem sexual, and stories or letters the child has written that are
relevant.[5] Request all medical records from your child's pediatrician and
hospitalizations if any visits had any relevance. Get complete copies of your child's
school files to see if there is anything helpful in there. After consulting with
your attorney about the legality in your state, tape conversations between you
and the abuser, particularly during the exchange of the child for visitations
and phone calls. If legal in your state, and generally it is not legal, tape
conversations between the abuser and your child. You can also discuss with your
attorney secretly videotaping some of your child's sexual acting out behaviors.
Communicate with the abuser during the pendency of the case in writing as much
as possible (email is a great alternative) so that you can use it in evidence at
trial. You also should confide in at least one, preferably two friends, not just
family members, about the things that are going on as they happen, soon after
they happen, when you are upset about things because later these people will be
able to testify and corroborate what you said happened and because there is a
hearsay exception for excited utterances that will allow them to testify to what
you told them.
Doctors & Therapists
Take your child to the doctor if there is any complaint from your child about
pain in the private parts or some other evidence of sexual abuse, such as sperm
or a discharge in the child’s underwear, or if the child tells you something
that makes you think that the child has been sexually abused. It is critical
that you take your child to a doctor or a therapist soon after the child tells
you or another person anything about the sexual abuse so that you (or the other
person) will later be able to testify to what the child said at trial. Remember,
if there is physical evidence on the child, not to bathe the child first and to
take any relevant clothing in a ziplock to show the doctor. It is far better to
take your child to the emergency room of your city’s public hospital right
away than the child’s pediatrician. Most emergency rooms have doctors who are
trained to handle sexual abuse examinations and most ER rooms have special
social workers who will make the call to CPS to report it, which looks better
than the report coming from you, especially if you are in an ongoing custody
case. When you go to the doctor, be sure to tell the doctor everything the child
told you. You can afterwards take your child to her/his pediatrician for a
followup and to let the pediatrician know what has been happening. Again tell
the pediatrician what your child told you. These statements will be written in
the doctor’s and hospital records and can later be used as evidence as there
is a hearsay exception for statements in aid of treatment. The child’s
statements that prompted you to take the child to the ER or doctor also can come
into evidence under this same hearsay exception. It is impossible to get the
child’s statements into evidence without a hearsay exception. It is also a
good idea to put your child in therapy or to encourage your child to speak with
the school counselor so that there are other third parties who can later testify
to what the child has said.
How You Play the Game
Most people think that only things that occurred prior to the custody case being
filed are important in the final custody decision, but that is mistaken. Custody
cases can easily last for a year or more. What happens and how you conduct
yourself during the pendency of the court case is very important to the outcome.
I tell my clients that their case is like a chess game, and it really matters
how you play the game. You need to be on guard throughout the pendency of the
case. It should go without saying that you need to make sure that you are
squeaky clean because you never know if there is a private investigator watching
you or whether you might have bad luck and get caught driving drunk or smoking
pot. You also should not have persons of the opposite sex who are not related to
you spend the night or live with you if at all possible. If your child or
children are sexually acting out, you should clearly tell them that that
behavior is not acceptable and then redirect them. You can talk with your
child’s therapist as to how to handle this situation without shaming your
child and about teaching your child about boundaries, but to avoid being
criticized at trial, you need to clearly tell your children that the sexually
acting out behavior is inappropriate. You also need to make sure your children
are supervised closely and do not allow them to sleep in the same room together.
You want to avoid giving the abuser opportunities to turn the tables and focus
the case on you instead of him.
Combating Allegations of Parental Alienation (PAS)
A very important piece and one of the most difficult things for protective
parents to do is to allow the child to go to visits with the abuser during the
pendency of the case, especially if the abuser has been granted unsupervised
visitation pending the trial. However, it is absolutely critical to follow the
Court’s Orders. If you withhold visitation and are found in contempt of court,
you could risk losing custody of your child to the abuser. It is equally
important to appear to encourage your child’s relationship with the abuser
during the pendency of the case because if you do not, it will be used against
you. One of the biggest factors in custody cases is that judges want to give
custody to the parent who will encourage the child’s relationship with the
other parent. Obviously, this sounds crazy when you are convinced that the other
parent is sexually abusing your child, but you have to be ever mindful of it and
actually do things that will prove that you have encouraged the child’s
relationship with the other parent, despite what you believe. When a protective
parent talks badly about the abusive parent, allows others to do so, or does
other things to make the child fear or hate the abuser, then the protective
parent is in danger of being labeled as having alienated the child from the
other parent.
Of course, one of the most critical factors in proving parental alienation is
that the child actually has expressed or otherwise exhibited hatred or fear of
the abusive parent. These cases can make a protective parent a bit crazy because
it should be perfectly normal for a sexually abused child to fear or hate the
abuser, but it is more likely that the child actually loves the abusive
parent.[6] Moreover, if evidence of alienation is shown in the custody
(psychological) evaluation or any other evidence (including the abuser’s own
testimony) at trial, it will be used against the protective parent and could
work to give the abuser custody of the child. It sounds crazy to do nice things
for the abuser, but it will help you in your case and fend off any attempt by
him to say you have alienated the child from him.
Here are some ways to create evidence that you are NOT alienating your child
from the abuser. With all of these, you need to take photographs of the items or
make copies of them to keep for evidence:
Remember, everything you say can and will be used against you. He is probably
taping your every call.
Cooperate with Child Protective Services
You have to cooperate with CPS in their investigation. If you do not cooperate,
you risk CPS turning on you and perhaps charging you with neglect for failure to
protect your child. Your attorney should give CPS information that might tend to
prove that the sexual abuse has occurred, but do not count on CPS substantiating
the sexual abuse. It is best that your attorney try to stay on speaking terms
with the CPS investigator(s) because CPS has absolutely no duty to tell anyone
what is going on in the investigation and really should not tell anyone what is
going on in it, but sometimes CPS will discuss the investigation, most likely
with the protective parent and that parent’s attorney. It is more likely that
CPS will say that the sexual abuse did not occur or that it cannot say whether
or not it occurred. Sometimes unsubstantiation happens when there is no direct
statement (“disclosure”) by the child saying that the abuser sexually abused
the child (for example, touched the child inappropriately or had sexual
relations with the child) or no medical evidence. Even if CPS unsubstantiates,
the CPS records and investigators still can be helpful to prove that the sexual
abuse actually occurred. It may be that both sides call CPS as a witness at
trial. Your attorney can turn the CPS witness around to help prove some of the
little pieces of the puzzle even if CPS unsubstantiates.
Domestic Violence
It is not unusual for sexual abuse to occur in the context of a battering
relationship where the abuser might sexually and even physically abuse the child
and also physically and sometimes sexually abuse the mother, who is the
protective parent in the custody case. Depending on how long the domestic
violence, which I am defining as physical abuse by the abuser against the
mother, has been happening, it might have been more difficult for the protective
parent to get away from the relationship in order to protect herself and the
child. Domestic violence in the context of a child custody case is a complicated
topic for another discussion, but suffice it to say that you can also obtain a
domestic violence protection or restraining order to protect yourself and the
child from the abuse, and that most custody laws now include at least as a
factor that the Court should also consider evidence of domestic violence. Some
states have a presumption that a perpetrator of domestic violence should not get
custody. In trying to get supervised visitation for the abuser in your custody
case, sometimes it is easier to prove domestic violence and its effects on the
children or physical abuse of the children rather than sexual abuse of the
child. So, your attorney needs to attack the case from all angles to achieve the
goal of supervised visitation for the abuser.
The Guardian ad Litem
I’m a child advocate, but my advice to you is not to ask for or agree to the
appointment of a Guardian ad Litem (“GAL”) to represent your child in the
custody case. The basic reason for this advice is that a GAL just creates one
more variable that you cannot control in your case. My other main reason is that
all too often GALs, besides usually not having training in sexual abuse cases,
also seem to gravitate toward the parent who appears more stable financially and
emotionally … and in a sexual abuse custody case, that usually turns out to be
the abuser. Furthermore, for the case to be settled, the GAL will also have to
agree to the settlement. So, if you can avoid having a GAL, do so.
If you end up with a GAL anyway, then you have to cooperate with the GAL and
provide information to the GAL. My best suggestion is to treat the GAL the way
you would treat a CPS investigator, with caution. Your attorney and you are
going to have to keep on the GAL’’s good side because, just as with
recommendations from a custody evaluation, the GAL’s recommendations are going
to carry a lot of weight with the judge. Your attorney should try to get the
GAL’s recommendations in writing so that the GAL has to commit to them and so
your attorney has advance warning of them. Once the GAL’s recommendations come
down, you and your attorney need to consider settling the case before trial.
Yet, you don’t have to roll over if the settlement is not going to protect
your child.
On the bright side, you might want to consider that even if the GAL’s
recommendations are not favorable to your position, you can look at them as the
worst case scenario for an outcome in the case and negotiate from there.
If you cannot reach a favorable settlement at that juncture, your attorney may
be in the unenviable position of fighting against the GAL’’s recommendations
at trial or of trying to win over the GAL. Neither is easy to do. You can
actually depose the GAL and call the GAL as a witness at trial, but you are
going to need a very experienced custody attorney to be successful, mostly
because the Court looks at the GAL as a neutral person with no preconceived
biases, and your attorney is going to have to show that the GAL is basically
either inept or biased.
The Custody Evaluation
One of the most common tactics in complex custody cases is to ask the Court
to appoint a forensic psychologist to perform a custody evaluation, which will
supposedly answer some questions and then give recommendations as to what
custody and visitation arrangement would be in the children’s best interests.
Quite often judges rubberstamp the custody evaluation recommendations; so,
custody evaluations are muy importante and should be requested and consented to
only with extreme caution. Choosing the psychologist is critical. Find a
psychologist, preferably three because you will have to negotiate which one to
choose, who has experience in sexual abuse, either in evaluation and treatment
of victims or perpetrators. You also should investigate to make sure the
potential psychologists are not aligned with the Father’s Rights Movement. It
makes more sense in a sexual abuse case, to have a psychological evaluation done
of the child / victim by an expert in child sexual abuse, instead of a regular
custody evaluation of everyone; however, if you cannot obtain the former, you
need to try your best to get a sexual abuse expert to do the custody evaluation.
Before the Order appointing the custody evaluator is entered, your attorney
needs to formulate questions for the evaluator to be included in the Order to
focus the evaluation. The questions should address the issues in the case,
including asking if the child has been sexually abused and if so, is the alleged
abuser (father) the perpetrator. The questions should also address domestic
violence and child physical abuse if those are also issues in the case. Then,
there are the general questions always included such as what custody and
visitation parenting arrangement would best promote the child’’s best
interests. Your attorney should make sure that the questions are carefully
drafted so that it is clear that the existence of sexual or physical abuse or
domestic violence are determined first as threshold issues before going to
general best interest issues; otherwise, the sexual and other abuse issues could
be minimized. Be warned that most custody evaluators recommend a form of shared
parenting or joint custody, with one parent having primary custody and the other
having secondary custody.
Once the custody evaluation Order is entered, your attorney needs to act swiftly
to make sure that the evaluator gets copies of, or is alerted to, all the court
documents as well as all other relevant documentation, such as CPS records,
medical records, school records etc. Your attorney will need to decide what
information to give the evaluator because everything you give the psychologist
will eventually be given to the abuser. The evaluator may have a questionnaire
for you to fill out about your family history and your parenting techniques,
etcetera. Again, make sure your attorney reviews everything you write before you
submit it to the psychologist. The psychologist will probably meet with you for
an introduction and then give you a battery of psychological tests to show
whether you have any DSM-IV diagnoses and how you view your child. The
psychologist should also give you the Sexual Behavior Inventory test that asks
you the frequency in the last six months of a variety of sexualized and normal
behaviors in your child or children. The psychologist will meet individually
with you and then with the abuser and will observe you with the children and
then the other parent with the children.
The psychologist should also meet with or interview the child, although some
say they do not want to subject the child to yet another interview. With your
attorney’s approval as to the legality in your state, you might want to
secretly tape your interviews with the psychologist in case there are
discrepancies in what you reported when the custody evaluation is finished. You
should be careful as to what you say to the psychologist, but at the same time,
you have to be honest and remember that on the tests, some questions that are
slightly negative about yourself are asked and it is normal to admit certain
negative things about oneself. If you deny these things that most people would
just admit, it will make you look strange, like you are trying to make yourself
appear better than you are. You need to answer honestly and try not to make yourself
look better or worse because that finding on the tests is just as, perhaps more,
damaging as having a mental disorder because it goes to your credibility.
After the custody evaluation is finished, you and your attorney need to review
it, first to see if the psychologist got the facts straight. If there is a
glaring problem, your attorney can write letter to the psychologist setting out
the discrepancies. Your attorney also should take a deposition of the custody
evaluator if the outcome is not favorable to your position. Your attorney should
investigate the custody evaluator’s background, including his or her resume,
books or articles written, conferences at which he or she presented , and any
affiliations with certain groups that would show a bias, such as father’s
rights groups. Your attorney should subpoena the custody evaluator’s complete
file and review its contents, preferably prior to, or at the deposition,
including all “collateral” statements, which are those given by people who
you and the abuser named as supportive witnesses, all statements and
questionnaires of, and interview notes about, you and the abuser, which may
include audio or video tapes, and the results of all mental health examinations.
Your attorney should be skilled and meticulous about deposing the custody
evaluator in order to find out in advance how the custody evaluator will testify
at trial and what holes there are in the custody evaluation.
Hiring a Sexual Abuse Expert
If the psychologist who did the custody evaluation did not adequately address
the issue of sexual abuse or found that there was no sexual abuse, depending on
the recommendations in the custody evaluation, you might want to hire another
psychologist who is an expert in child sexual abuse to critique the custody
evaluation and to do another evaluation solely on the issue of sexual abuse. You
need to understand that your child’s therapist cannot be this evaluator of
sexual abuse because it would be a violation of the psychologists’’ code of
ethics because it is considered acting in a dual role. You need to have a
separate psychologist to be your sexual abuse expert to evaluate and form a
professional opinion as to whether the sexual abuse occurred.
You should definitely have this psychologist interview the child. If your
attorney wants your sexual abuse expert to be able to interview the alleged
perpetrator, your attorney will probably have to file a motion in the case;
however that is a tactical move and must be taken with caution. Do not expect
the Court to allow it once a custody evaluation has already been done, which is
why it's best to choose a custody evaluator who has experience in sexual abuse
in the first place. Furthermore, you need to know that there is no mental test
that can tell for sure if someone is a sex abuser. Sexual abuse is proven from a
constellation of evidence.
Even if you hire a sexual abuse expert, there is no guarantee that the expert is
going to arrive at the conclusion that you desire; so, you might not want to tip
your hand that you have such an expert until you have to do so. You can expect
the other side to want to depose your sexual abuse expert, and you will have to
pay to obtain a copy of that deposition even though you did not take it.
The Abuser’s Testimony
Your attorney will also want to request discovery from the alleged perpetrator
and to take his deposition. You want to have the abuser’s version of the facts
on the record as soon as possible before he knows what sort of evidence you
have. A strategy your attorney might seriously want to consider, in addition to
taking the abuser's deposition, is calling the abuser as your first witness at
trial. This strategy takes away the opportunity for the abuser to change his
story according to how other witnesses testify at trial. Since the custody case
is a civil trial, if the abuser takes the Fifth[7] and refuses to testify, the
Court can infer that he is in fact guilty of the thing for which he took the
Fifth.
The Child’s Testimony
There are many ways to get the child victim’s statements into evidence at
trial without having the child testify at trial. Some have been discussed above,
such as the child’s statements made to doctors or therapists in aid of
treatment or the child’s statements made to parents or other caretakers who
then take the child to a doctor or a therapist based upon what the child said.
Another exception to the hearsay rule is an excited utterance, which means that
if the child says something at or soon after the time that something traumatic
happens and the child is upset at the time it is said, then the child’s
statement can be testified to by someone who heard what the child said.
Depending on the facts of your sexual abuse case, you might need to have the
child victim testify. To minimize trauma for the child, you and the alleged
perpetrator could agree to allow the judge to talk to the child in Chambers
alone. However, a better strategy is to ask that just the lawyers and the judge
be present and that the courtroom be cleared with even the parents having to
leave. This method allows your attorney to direct the questioning on direct
examination and also insures that the testimony is on the record, which is
important in case your case ends up being appealed.
Other Witnesses at Trial
There are many other witnesses that can be called for trial depending on the
time allowed for testimony. Some of these I call professional witnesses:
doctors, psychologists, therapists, police officers, teachers, and CPS
investigators for example. If there are medical records, sometimes these can
come into evidence either by consent or with only brief testimony from the
records custodian unless something needs to be explained, in which case you may
need to subpoena the doctor. If there is actual medical evidence of sexual
abuse, for example, tears or a sexually transmitted disease, you may need to
have the doctor testify and explain how that medical evidence would tend to show
that sexual abuse occurred. You might also need medical personnel if the
child’s statements in aid of treatment are not written clearly in the medical
records.
You should not forget that you also have to present basic evidence that you are
a fit parent and that it is in the child’s best interests to be in your
custody. Besides all the evidence above, you should choose two or three
non-relative witnesses who have witnessed you taking care of the child and who
will testify that you are an excellent mother. Friends, neighbors, your
child’s friend’s parents, babysitters, daycare providers, housekeepers, and
sometimes church members are possible witnesses.
For each possible witness, you should write down for your attorney what you
expect that witness to say, the witness’ name, address and telephone numbers.
Your attorney may want you to contact these witnesses first. A lot of times when
it gets right down to court time, people do not want to get involved. Remember,
a subpoena can be used to force someone to testify and also to get someone an
excuse for work, but if that person is adamant about not testifying, you should
probably look somewhere else. to help you in a crunch with your child is very
important. You should choose at least one relative to testify, preferably a
grandmother or aunt to tell about how your family supports you and has been and
will be there for you. It is especially important when there are allegations of
sexual abuse if you are asking for supervised visitation for the abuser because
having any child basically 24/7 is stressful. All parents need help every so
often.
Your Testimony
You probably do not want to hear this bit of news, but your testimony is
probably the most important testimony in your custody trial. The reason is that,
first of all, when it comes to sexual abuse allegations, you are probably the
only witness who can prove most of your case. Your credibility, meaning
believability, is absolutely key. You also have to appear to be loving, smart,
concerned, and nurturing, and moreover, not appear to be vindictive, lying,
manipulative or evil. Mothers still have a more difficult time in custody cases
than fathers when the fathers contest custody.
Here are some examples: If a father changes diapers and bathes children, he is
viewed as a saint. He gets extra credit. If a mother does it, she gets no points
because that is her job. If a mother works full time, or god forbid, overtime,
she is viewed as having abandoned her motherly duties. If she has a boyfriend,
she is a slut. Throw sexual abuse allegations in the mix and mothers are viewed
all the more skeptically by the Court and every other professional involved in
the case prior to and at trial.
Your attorney should review your testimony with you prior to trial. You should
review your chronological history before you testify. Dates are very important.
If you cannot remember a date when you are testifying, do not guess at a
specific date, either say you cannot recall or give a general timeframe. Details
are very important. You need to paint a picture for the judge so that the judge
can see what you’re describing as if she or he is watching a movie. You should
think of all your five senses while you are testifying and describing what
happened. Tell the judge what you saw, heard, felt, smelled or tasted. Take
yourself back to the moment you are describing. The more detailed your testimony
is, the more believable it will be.
Living with the Law
In the beginning of this article, I outlined some possible reasons why sexually
abused children are not protected by the Courts. Sometimes, every so often,
judges do get it. Sometimes children are protected. However, you need to also
know that there are gradations of protection. The judge might totally stop the
abuser’s visitation until the abuser gets some help. The judge might give the
children therapeutic visitation with the abuser, which generally entails going
to therapy together once a week, or the judge might give the abuser visitation
supervised by someone else. You can even ask the judge to order the abuser to
pay a person from a nanny service to supervise the visits if there is no one
else available.
Unfortunately, when there is therapeutic or supervised visitation, the abuser is
probably going to try to impress the supervisor so that he can come back to
Court with a motion to modify his visitation to try to get unsupervised
visitation. You need to be aware that just because the trial is over, it does
not mean that the case is over. These types of cases can drag on for years.
Courts have jurisdiction (the power to hear the case) over children in custody
cases until the child turns eighteen or until one parent dies or has his or her
parental rights terminated, whichever occurs first.
If supervised visitation is not going well or if the abuser refuses to attend
the visitation for several months and you have a finding of physical or sexual
abuse by the Court, you may want to consider filing a Petition to Terminate the
abuser’s parental rights (““TPR””). In many states, if the abuser does
not pay child support for a long period of time, that is also a legal ground, or
reason, to TPR. The burden of proof in a TPR hearing is more difficult than in a
regular custody case, and not only do you have to prove that there is at least
one legal reason to TPR, but the Court also has to find that it is in the
child’s best interests that the abuser’s parental rights are terminated.
However, it does happen, and if you have that opportunity, you might want to
take it because then you have sole control over the abuser’s access to the
children in the future.
If you lose your custody case, you need to know that it is rare for a custody
case to be overturned on appeal. The reason is because Courts do not want to
move children around from home to home. The policy of all Courts is to have
permanency for children; so, the appellate courts give the trial judges wide
latitude, also known as broad discretion, in formulating custody orders. In each
state, there are two levels of Appellate Courts. Generally, the first level is
called the Court of Appeals, and the second level is the state Supreme Court.
Rarely, you can appeal to the United States Supreme Court if you lose in your
state Supreme Court. When you appeal your case, you do not get to put on new
evidence or testimony. The only time to present evidence or testimony is at your
custody trial itself. For your appeal, the appellate court looks at the
transcript of the trial, the court documents filed in the case, and the evidence
presented. The only reason you can appeal your case is a legal mistake made by
the trial judge, either at trial or in the custody order.
You cannot just appeal because you lost your case. If there is no legal mistake,
there is no ground for appeal. Sometimes there are only minor mistakes that
would not change the outcome of the custody trial, called “harmless errors.”
If the appellate court finds that the errors of the trial judge were harmless
errors or that the trial judge did not abuse his or her discretion, then the
trial judge’s custody order will not be overturned on appeal.
If you are unable to protect your child by way of your custody case, you can
consider any criminal charges that might be able to be brought against the
abuser, even for other things that the abuser has done wrong. You should consult
your attorney to help you evaluate this situation, and if appropriate, contact
the authorities. Remember that generally a defendant will get more prison time
in Federal Court than in state court. Federal criminal law generally applies to
things people do wrong that do or can cross state lines, like sending threats
through the mail or crossing a state line to violate a domestic violence
restraining order.
There is an underground network that tries to protect children from sexual
abuse[8]; however, if you go underground with your child, you will most likely
be committing a felony, and if your child is found, then the abuser will stand a
good chance of gaining permanent custody of your child, and you may well end up
in prison. Furthermore, life underground is incredibly stressful, and it robs
your child of the childhood you wanted your child to have.
A more realistic option might be to make sure your child stays in therapy so
that she or he will be more likely to disclose any future abuse to the
therapist. Teach your child about good touches and bad touches, boundaries and
private parts.[9] Do not allow your child to be alone with other children if
your child has acted out sexually. Continue to document evidence without letting
your child or the abuser know that you are doing so. Remember, disclosure is
sometimes a process. Hang in there, get some support from others in your
situation and be vigilant. If there is a significant change in circumstances,
which could be new evidence of sexual abuse, you can file a motion to modify
your custody order.
If you and your attorney have done everything you can think of to prepare and to
try your case, then you will be able to live with the outcome a little better,
no matter what it is. You want to minimize the “what ifs.” Sexual abuse is
hard to prove, especially where there is no disclosure by the child, no medical
evidence and no confession by the abuser. Yet, having these top three pieces of
proof is rare. You need to be realistic when you begin your case. However, you
must do all that you can to protect your children now before this case is over
because after the permanent custody trial is over, you cannot go back and bring
up evidence that occurred prior to that trial. You have to bring it all out now
or that evidence will be lost.
________________________
[2] This article is general legal information only. It is not legal advice for
your case. You should talk to an attorney about your specific case before you
implement any of these strategies.
[3] If one child is being sexually abused, all your children, to whom the abuser
has access, are at risk of being sexually abused.
[4] Do not give this information to anyone else before you check with your
attorney first. In fact, you should consult with your attorney about everything
you do and say to anyone else involved in the case to make sure you are doing
the right thing for your case.
[5] Something is relevant if it tends to prove that some fact (like that the
sexual abuse occurred) is more or less likely to be true.
[6] There will be time for healing after the custody case is over. You can ask
the Judge to order the abuser into therapy with the child, in which hopefully
the abuser will get to the point where he will acknowledge to the child that he
did something wrong. You also can discuss healing with your child’s individual
therapist. But, during your custody case, the top priority is to protect your
child, and to do that, you must win.
[7] “Taking the Fifth” refers to taking advantage of the Fifth Amendment to
the U.S. Constitution that says that a person does not have to testify against
himself regarding any crime he might have committed.
[8] This underground has been profiled on tv programs such as “Dateline,”
and allegedly involves a woman named Faye Yager.
[9] In doing all this though, you need to be sure not to allow your child to
become alienated from the abuser (unless the abuser chooses not to visit, in
which case, consider TPR as soon as possible) and to follow the suggestions
above for ways to continue to have evidence that you are including the abuser so
that he cannot turn the tables on you and try to get custody from you based upon
parental alienation.
Custody Cases: Protecting Children from Sexual Abuse
© 2003 by Arlaine Rockey, Attorney at Law
http://www.ArlaineRockey.com
used with author’s permission
© Arlaine Rockey, Attorney At Law
Reposted by
http://www.abusefreedom.com
Abuse Freedom United
cheryl boyer/president/founder
803 438 8119