Arlaine Rockey

Experienced Trial Lawyer

 

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Custody Cases
Protecting Children from Sexual Abuse
© 2003 by Arlaine Rockey, Attorney at Law[1]

 

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]

As a protective parent, I tell my clients that you cannot afford to risk more problems by being an activist to change the world during your case. After your 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, 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:

  • Sexual acting out with a sibling or another child or adult
  • Use of a toy or object in a sexual manner
  • Repeated irritation around private parts
  • Disclosures (child telling you or someone else about the abuse)
  • Venereal disease, yeast infections, urinary tract infections
  • Dates of visits or time spent alone, including at night, with the alleged abuser
  • Complaints of pain urinating or using bathroom
  • Enuresis or encopresis after being potty trained
  • Self-mutilation (cutting, hair pulling etc.)
  • Discharge from vagina or in underwear
  • Blood or tears around vagina or anus
  • Night terrors
  • Saying or doing things that show a more advanced knowledge of sex
  • Masterbation (although most masterbating in children is normal behavior)
  • Abuser shows child favoritism, gives child gifts

 Also write down other relevant information such as:

  • List of all people who have access to the child (possible abusers)
  • List of all witnesses who might have heard or have seen the child say or do something unusual, and all caretakers, with their names, addresses and telephone numbers
  • Make chronological history of any physical abuse of child, siblings, or yourself from abuser.
  • Write about abuser’s history, including any history of being abused, of any other people in his family who were abused or abusers, any criminal record, history of alcohol or drug abuse, names and addresses of his former wives or girlfriends.
  • Use of child pornography by the abuser

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:

  • Have the child make gifts and/or cards for the abuser (birthday & all holidays)
  • Make sure the child calls the abuser at least every other evening, preferably from a cell phone so you will have a record of the telephone number called
  • In writing (email is fine) inform the abuser in advance of all regular doctor and dental appointments, and teacher’s conferences, and invite him to attend (unless you have a domestic violence restraining order against him), and if he does not attend, send him an email letting him know what happened and what the doctor said or recommended 

 

 

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[1]You may link to this page; however, this article may not be reproduced or republished anywhere without the author's written permission. Email ARockey@aol.com
[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.