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
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Tweet Me: @jdgordonlaw
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