Pages

Monday, March 19, 2012



Jonathan D. Gordon, Ph.D., J.D.


ACCUSED in FAMILY COURT:  WINNING and LOSING STRATEGIES for
VARIOUS NIGHTMARE SCENARIOS- PART TWO
Copyright © Jonathan D. Gordon, Esq. 2012

Previously (see blog post of March 15, 2012), I discussed in parts A. and B., the subjects of being accused of being an unfit mother and being accused of domestic violence.  Here, I continue:

     C.  Sexual Abuse of Children:

            I previously discussed procedure in Family Court when allegations of sexual abuse are made against a parent by another parent (See March 4, 2012 blog post).  Court procedure is a necessary structure into which you are placed.  It is the set of rules under which the Court operates.  But even when you know what is coming, it is important to have a personal strategy so that you have the best possible outcome, given the unknown variables that will be operating alongside of you.  These unknowns include the unexpected:  For example, a witness surfaces; a child makes a statement to a mental health practitioner, the school or to a law enforcement official;  photos or computer data (e.g. Facebook posts or previously downloaded porn files) are uncovered; etc.  You can only control what is theoretically or potentially in your power to change or to manipulate.  You cannot control outside forces such as unanticipated statements of others against you, but you can try to react in a constructive, non-self-sabotaging way.  Imagine you are barred from your residence by a brand new restraining order.  While you are out of the house, your spouse/partner has plenty of time to go through your computer hard drive.  Maybe enough time to have the hard drive removed and analyzed.  Or even handed over to the prosecutor’s office.  Before going any further, you should know (if you don’t already), that downloading pornographic images of under-age minors is illegal.  But that’s not the point here.  I am discussing what to do once you are accused.

            Scenario 1:  You know you are guilty
It is essential that you disclose everything to your attorney who needs to know what you are up against and so you can get properly counseled.  If you are not totally forthcoming with your attorney, then your attorney and you will eventually feel and look foolish when your actions are proven by “the other side” (i.e. your adversary).  Your attorney will most likely believe your story and advocate for that story as if it is true—because your attorney needs to believe in your cause, needs to be able to passionately defend you and to advocate zealously on your behalf.  All attorneys have had the experience of doing so, and then later finding out that their client did not tell them everything.  Ultimately, the truth comes out, in most cases.  Your attorney will be in a better—and more realistic—position to advocate for your interests, if the attorney knows all of the facts.  Your communications with your attorney are privileged unless there is an imminent risk of harm to another person and certainly if there is any risk to the safety of a child.  You should discuss the limits of privileged communications with your attorney when you retain the attorney. 

If you are guilty of sexual abusing a child, your parenting time will still be limited, suspended or supervised no matter what you say.  You may or may not be in jail with a criminal complaint, alongside a parallel proceeding in Family Court, depending on the circumstances and the severity of what you are accused of.  The Court will act swiftly to protect your child, in most cases.  In a situation like this, the Court will most likely consider you to be in need of mental health treatment.  Depending on what you did to your child (or any child), you will be expected to engage in psychotherapy with a mental health professional specializing in child sexual abusers.  Your parenting time will be therapeutically supervised, and eventually if you do your part, you may get to the point of unsupervised parenting time with your child.  You can deny and stall the therapeutic process for weeks and even months.  Eventually, you will most likely have to go through the same therapeutic process, whether or not you stalled and denied, or admitted that you have a problem and asked for help.  If you know you have a problem, this is the best time and opportunity to get the professional help you need and to engage in the process with sincerity.  You have been “outed” and if you want to be shown any mercy, it would behoove you to swiftly begin treatment with an appropriate professional.    You won’t necessarily have a criminal complaint or be in jail simply because of a sexual abuse allegation.  It depends on the circumstances.  There are all levels of sexual abuse, ranging from inappropriate nudity in the house, to inappropriate touch, to molestation, to actual penetration.  The courts, with the aid of professionals, will determine what is the most appropriate response to these unique circumstances, to protect the child and to provide the most appropriate treatment to the family.  There is certainly no guarantee that you will ever be allowed unsupervised contact with your child again, depending on the circumstances.  There is also no guarantee that your child will forgive you and that you will be able to resume a healthier relationship with the child.  That depends a lot on you, your motivation for getting treatment, your success in treatment, and of course, your child’s response to his/her own treatment by professionals.  Needless to say, this will be a long, hard, expensive road.    

Scenario 2:  You know you are not guilty.
The procedure is virtually the same as the above, sorry to say.  You will need to be as cooperative and open as you can.  Openness with your attorney, regardless of your embarrassment,  is always essential, so that your attorney can advocate for your interests effectively.  With allegations of sexual abuse of children, although there is the Constitutional presumption of innocence in Court, you are still going to be treated as if you might really be guilty until proven innocent—at least for a temporary period of time.  The Court cannot take chances with serious allegations such as this, since the Judge has the responsibility to protect the children under the Court’s jurisdiction (i.e. a case on this Judge’s docket).  The allegations have to be proven, but first you will be subjected to expensive psychological and psychiatric evaluations with experts who specialize in sexual abuse of children.  Your child will be evaluated as well.  In my last blog post, I discussed the importance of appropriate child interview methods to avoid the implantation of false memories of abuse.  A malicious parent, through constant questioning and leading conversations, can implant these false memories in a young, impressionable child.  (How many times, for example, can a mother ask the child “Did Daddy touch you down there?” before the child starts to believe that Daddy did.  Hopefully the professionals doing the evaluations will be able to discern what is real from what is not real.  For the sake of this discussion, we will call the falsely accusing parent the “malicious parent”.  None of this discussion should be taken to mean that accusations of abuse are false most of the time.  They are not.  But there are a great number of cases where the allegations are fictional and that is what I am discussing in this section.

If a parent is subsequently found to be guilty of lying to the Court, making false accusations against the other parent, and otherwise attempting to alienate the child from the accused parent, then the Court will come down hard on the malicious parent.  This can take the form of fines, a switch in custody to the other (formerly falsely accused) parent, and the payment of the accused parent’s legal fees.  This can be in the hundreds of thousands or even over a million dollars in some extreme cases.  Having a child under the control of the malicious parent, in the constant company of that parent’s own parents (the child’s grandparents), other family members, close friends, etc., it is easy to see how a young, suggestible child could be led to believe that the other parent (whose parenting time is now suspended) might have done bad things to them.  This causes great anxiety and confusion in the child since at some level the child has to question his/her own sense of reality and reconstruct it, based on what he/she is hearing from the adults in his or her life.  The child is therefore, in this scenario, being emotionally damaged by the twisted information swirling around in the malicious parent’s residence, in which the child lives.  This all takes place while the innocent, falsely accused parent remains isolated from the child, or at best, has an hour of supervised contact once a week.  It is not unheard of that a malicious parent can effectively alienate a child from the other parent, to the extent that your relationship with that child can actually be severed.  It is a very serious scenario and will be extremely expensive to defend against.  Even then, there is no guarantee of success, justice being well served, or receiving a happy ending with this scenario.  But there is no good alternative to fighting to clear your name.  Either you fight to prove the allegations are false, or you walk away from your child with no expectation of resuming a relationship.  Most people choose to fight for their relationship with their child, but it is a very expensive and emotionally-draining process.  You could end up spending your last penny as well as the funds your family and friends lent you, to defend yourself.  You should discuss your options with your attorney, and then get a second opinion.  Make sure your attorney is well versed and experienced in this area.

     D.   Child Abuse and Neglect, Generally Speaking: 

Each State has its own child protective services agency (CPS).  In New Jersey where I practice, it is called the Division of Youth and Family Services or DYFS.  Assuming each CPS agency has a child abuse hotline or other method for reporting child abuse and neglect, it also has procedures enacted by Statute, for investigating the allegations.  Usually the informant’s name or the source of the phone call is kept confidential.  Otherwise, people would be reluctant to report abuse or neglect.  In New Jersey, it is actually a misdemeanor NOT to report if you have reason to believe that abuse and/or neglect might be occurring.  That means that the informant does not have to investigate by themselves to find proof prior to making the phone call, but they have to have a good faith reason to believe that it might be occurring.  It is the CPS’s job to do the investigation and to obtain the proofs and documentation.  In fact, health professionals such as physicians and psychologists, social workers, etc., could get disciplined for not reporting suspicions of abuse/neglect.

Without getting into the methods used by CPS agencies, or whether your case is real or based on a false allegation, there are some strategies that should always be employed.  If you are uncooperative, guarded, unresponsive or hostile to the CPS workers, it will work against you.  It will make things worse.  Even though you may feel that your Constitutional rights to privacy are being violated the workers have the right—granted by Statutes—to enter your house, look around, open your refrigerator to look at what’s inside, go into your bathrooms, bedrooms and to interview your children individually without you being present in the room, etc.  If you do not allow them entry, they will return with a court order and with the police to do what they have to do.  In some cases, they will have the right to temporarily remove a child from a home, place the child with a relative or foster parent, take you to Court, and insist on evaluations and possible interventions which will be ordered by the Judge. 

It is an extreme scenario for a CPS agency to remove a child from the home.  More often than not, the agency will try to identify a problem and see if they can work with you to find an appropriate intervention, to keep the family intact.  If a child is removed from the home, the goal is usually reunification.  If the precipitating problem is substance abuse or excessive alcohol consumption, you will need to agree to treatment and to actually attend and complete that treatment successfully.  If the issue involves neglect, the agency will need to know why.  If you are overwhelmed with the demands of parenting, perhaps the agency will provide you with homemaking services or refer you to other social service agencies that can provide you with needed support.   If there is medical neglect, you may be Court ordered to provide the care that the Court decides is necessary. 

Generally, you will not have to go to Court if your child is not removed from the home, so long as you cooperate with the CPS agency.  That is a fuzzy area that needs to be looked at.  If you know that what they are asking you to do is reasonable and based on your reality, it might be a good idea to participate in whatever program they refer you to, such as psychotherapy or substance abuse counseling.  But before you sign anything—any “care plans” or other written agreement with the CPS agency, you should consult with an attorney who is knowledgeable in these matters.  You need to fully understand what you are agreeing to, whether it constitutes an admission of guilt, and whether or not your name will be placed in a State child abuse registry as a result.  In any case, you may receive a letter from them saying that they substantiated abuse or neglect, based on your particular circumstances.  That substantiation may have undesirable consequences to you that you need to understand and perhaps should appeal.  You should consult with a family law attorney adept in these matters so that you can be properly advised.  It is one thing to be forthcoming, cooperative and civil to a CPS worker.  It is quite another to agree to sign agreements, admissions, and agree to services (e.g. sexual abuse counseling)  that seem to imply that you are “guilty” of whatever they are sending you for.  You have the right to consult with a lawyer before you sign anything or agree to services.  You won’t be punished for that.  But generally you will fare better with an open, cooperative attitude.  If the allegations are false, they will eventually be dropped (hopefully) and you should receive documentation that this was done.  You should make sure that if the allegations are deemed to be unfounded with a confirmation letter and that your name was never placed on the Child Abuse Registry, or that if it was, that it was removed. 
  
      E.   How to Act in Court: A Checklist:

Here are a few things you can do to try to make a favorable impression in Court.  This will not change your facts or the ultimate decision that the Judge will make, but may start you off on the right foot with the Judge.  First impressions are important, and even if superficial, these are things that the Judges will react to in some way, either positively or negatively.  Whether or not you have the right to express yourself as you wish when you are home or with your friends, you are in front of a Judge who may have values different from yours, may have private feelings about certain modes of dress or personal expression, and may initially like you or dislike you, based on superficial and non-legal characteristics that you display.  Why take the chance in Court when the Judge has the power to make your life more or less difficult?  The Judge will absolutely be observing you to assess your demeanor, attitude and cooperation.  Here are some dos and don’ts:

a.    Dress respectfully.  Wear modest clothing: No cleavage, mini skirts or excessive jewelry, makeup and piercings.  No baseball caps or sunglasses.  Shirts on men should be buttoned.  It is better to wear a suit or sport jacket if you have.  If not, a clean, pressed shirt and pants.  No tee shirts with slogans.  You do not want to look sexy or cool in court.  You want to look as vanilla as possible.

b.    No gum chewing, slouching in your seat, sighing, rolling your eyes, mumbling under your breath, commenting (blurting out) about something someone says, tapping your pen or fingers on the table, etc. 

c.    Grooming is important.  Men should be shaven or have beards trimmed neatly.  Shoelaces should be tied.  Hair should be clean and combed/brushed.  You don’t want to look like you slept on a cardboard box by the Church steps last night (unless you did because your spouse falsely accused you of domestic violence and you instantly became homeless).

d.    Expect to be ordered to leave a urine sample in court.  Don’t show up thinking that your urine will be clean on Monday if you partied on Friday night.  It won’t.  Some substances remain in your system for longer than you think.  And if the Judge orders a hair follicle test, it will show positive for anything you did for at least the past three months.  Be guided accordingly.

e.    If you are prescribed anything that would show up on a urine test, bring the medication with you, or a doctor’s note showing that you are prescribed whatever drug, for what whatever diagnosis, and that the doctor believes that you take the medication responsibly.  You will not be believed if your urine comes out positive for morphine if you say you take Percocet for back pain or that your dentist prescribed it, unless you come with documentation.  You will not be believed if your urine comes out positive for pot, if you say you were in a party and you inhaled secondhand smoke, or someone gave you a brownie containing pot, etc.  Bring all documentation of the medications you are on.

f.      Before you are ordered to do so, find a therapist or group counseling and start attending psychotherapy or group for whatever you think the issues are (just think, what would a court order you to get fixed?):  such as anger management training, parenting skills training, counseling or treatment for depression, anxiety, panic disorder or get to a psychiatrist if you might have bi-polar disorder or something else that requires medication.  If you have a couple weeks before your court date, consider checking in for a 14 day detox program and get a referral for outpatient followup once you are out of detox.  Walk into court already showing that you are sincere, intelligent, insightful and proactive.  You will reach you goals faster if you do.

g.    Write notes to your attorney in court rather than whispering.  Make eye contact with the Judge and have a serious or neutral, innocent-looking, not scary facial expression. Don’t have a smile or smirk on your face. It will make you look inappropriate and bizarre or disrespectful to the Judge.  Have appropriate, serious affect.   Act polite and respectful. If the Judge asks you a question, end every sentence with “Your Honor”.  Yes, Your Honor, No Your Honor, etc.  Stand when you speak to the Judge unless she tells you to sit.  And then say “Thank you Your Honor.”

h.    No matter what horrible lies the other attorney (or your spouse) says about you in Court, do not react.  Do not glare, give death looks, make noise in your seat, act out in any way.  That will only work against you.  Don’t roll your eyes, slouch or sigh loudly.  I know I said that already, but Judges hate that.  Let your attorney fight for you.  Or if you represent yourself, then try to act as professionally and respectfully as you can, sticking to the facts and proofs.  Avoid personal attacks and name calling.  Look right at the Judge when you speak, so the Judge can size up your sincerity, level of anger and credibility.  Always tell the truth.  Always.  Once the Judge catches you in a lie, you’re done.  You’ve effectively dug a hole and jumped into it.  Don’t lie in Court. That’s a very bad strategy.

i.      If you are the primary breadwinner, and you are out of the house, make sure that you are up to date on any child support or spousal support obligations before you walk into court.  If there is nothing ordered yet, make sure that there is money in the checking account so that bills can be paid.  Don’t wait for the Judge to order you to take care of your child’s bills.  It’s your child, not the Judge’s, so you should not wait for a Judge to tell you what you already should know.  Make sure the mortgage or rent is paid and money to put milk and eggs in the refrigerator.  If there is a no contact order, have your attorney send your check to the adversary attorney, or bring it with you to court.  Make no changes in health or auto insurance.  Do not cut off your spouse or children from cell phones, cable TV or Internet.  Do not act in anger, even if you are unjustly accused.  It will only make things worse for you.

For anyone going through rough times, good luck to you and to your children.
Copyright © Jonathan D. Gordon, Esq. 2012

Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.
Copyright © Jonathan D. Gordon, Esq. 2012

Web Site:  www.jdgordonlaw.com
Tweet Me:  @jdgordonlaw
Linked In:  http://www.linkedin.com/in/jdgordonlaw