Sunday, March 4, 2012

  Sexual Abuse Allegations in Family Court Wars-Finding the Victim

Copyright © Jonathan D. Gordon, Esq. 2012
            In family court litigation involving children, whether in the context of divorce, or in child custody litigation between never- married couples, allegations of sexual abuse of children occasionally arise.  When they do, it is the court’s responsibility to obtain the facts, act quickly to protect the child(ren), and to order appropriate interventions for the target parent (or parents) and children, once assessments are completed.  What makes the Judge’s job even more difficult, is that it is often difficult to ascertain the veracity of the allegations.  For the purposes of the present discussion, I will be only speaking about allegations of sexual abuse by one parent against the other parent.  This is a brief overview, and much more can—and will be--written about the various issues touched upon here.

Whether the Allegations are True or False, They Still Have to be Proven:
            There are few other actions more heinous than the sexual abuse of children.  Sometimes, if we are talking about a divorce action, the initiation of the complaint for divorce is precipitated by—or contemporaneous with--the discovery that one of the parents molested one or more of the children.  In a case like that, there might be two or even three concurrent legal actions:  (a) A criminal complaint that is handled by the local police or Prosecutor’s office; (b) a child protective services complaint (usually in Family Court); and (c) the matrimonial litigation.  So potentially, this type of allegation can result in three different docket numbers.  In New Jersey, for example, the Division of Youth and Family Services (DYFS), which is NJ’s child protective agency, might get a referral to their toll free hotline from the police, the school, a pediatrician, a neighbor or a parent, to name a few.  An allegation such as this, when the alleged molesting parent is still living with the child, will get an immediate response, even in the middle of the night, to prevent potential re-victimization.  DYFS (and likely other state child protective service (CPS) agencies) are required to also notify the local Prosecutor’s office for concurrent criminal investigation.  Sometimes the prosecutor will take the case, and sometimes it may decline, depending on the nature of the allegations and the available evidence. 

The judge handling the child protective aspect of the matter will typically suspend parenting time temporarily, issue a restraining order (known elsewhere as an order of protection) preventing any contact, or at the very least, any unsupervised contact between the accused parent and the child(ren).   If the alleged perpetrator is already out of the house (i.e. in jail, or living with relatives), then the CPC agency may defer to the Family Court judge since there is no imminent danger (any more) to the child because the offending parent is no longer in contact with the child.  You can see how this type of case can be very complex and often confusing procedurally.

            Family Court is a civil court—not criminal.  There are therefore different standards for evidence, and the burden of proof is lower (easier to prove) in Family Court than in criminal matters.  Usually the decisions of the CPS court (also a civil matter in Family Court) will trump any decisions by the matrimonial judge pertaining to custody and visitation.  The matrimonial judge will continue with the usual matrimonial litigation (e.g. routine discovery, and settling financial issues such as alimony, equitable distribution, and child support).   Sometimes the CPS matter will remain open, with periodic court reviews and appearances by the parties, way after the divorce is concluded.  The child protective services litigation in a particular family can continue for years, long after the parties are already divorced and as long as there is a reason to continue to monitor the parties and safeguard the children.

            Guilty until Proven Innocent?
            In a matter such as the one we are discussing, the civil (family) Court has little choice but to act immediately to protect a child.  That is the Judge’s job in a case like this and the Judge will usually prefer to be more cautious than not. This is, by necessity, an instance where a parent can be deprived of their Constitutional rights (to parent) without a trial.  But underlying any immediate moves by the Court, is the realization that eventually the allegations may be proven or disproven in the regular course (unless of course, the accused parent admits to the allegations).  To get to that point, the court will need to order various assessments to begin gathering proofs that will usually clarify the situation one way or the other.  This will typically include a physical evaluation, forensic psychological evaluations, forensic psychiatric evaluations, and a forensic sexual abuse evaluation of the child.  Forensic essentially means that the evaluations are performed by experts for the purposes of presenting evidence to be used in a court proceeding.  Even though the court will appoint expert evaluators, the accused parent has the right to obtain their own expert if needed to refute the court’s expert.

            The Role of Experts:
A forensic sexual abuse evaluation of a child is usually—and should be—done by an experienced evaluator in the proper setting.  Young children are often assessed with the aid of props such as with anatomically-correct dolls.  It is essential that the adults (e.g. family members, untrained investigators, well-meaning support people) not interview or otherwise question the child, to avoid suggestive remarks and questions that can actually implant false memories in a young, impressionable child.  Young children are very susceptible to suggestion.   In the famous New Jersey case of State of New Jersey v. Kelly Michaels, 136 N.J. 299 (1994), the New Jersey Supreme Court affirmed the Appellate Division’s reversal and remand of the defendant’s conviction by the trial court.  The NJ Supreme Court found that the statements and testimony elicited by the prosecutor’s improper interview techniques made the evidence derived from these interviews unreliable.  The point was strongly made that suggestive and leading questions can result in a child acquiring false memories of abuse.  Not only can an investigating officer ask inappropriately leading questions and make suggestive remarks to a child, but a parent can do so as well.  If that is done, the Court may find it extremely difficult to discern between real facts and false memories implanted by others. 

Suggestive Coercion and Implanted Memories of Abuse:

A vindictive parent is in a strong position to be able to guide a child’s memories by the use of suggestions, leading questions and by subtly being coercive.  Inappropriate interviewing techniques by law enforcement can have the same effect.  Approximately one third of sexual abuse allegations in a divorce context are false.  (That means that two thirds are not, however.)  So either one vicious parent is doing their best to alienate the child from the other parent, or the child has been victimized by a mentally ill parent who acted as a predator.  There is therefore much to investigate and to discover, and time is of the essence.  The evaluation of a child who is believed to be a victim of sexual abuse, should be left to a professional who has training and expertise in this area.  Cases such as these will by necessity cost a fortune since they are expert-laden and much court time is necessary.  In an unpublished case that lasted almost four years, with about seventy days in Court, the N.J. Appellate Division awarded a falsely accused father approximately $1.8 million in legal and expert fees.  The trial court found that the mother’s allegations were false and malicious, and that the children were being turned against their father by her adamant allegations of sexual abuse.  That Judge transferred the children to the father and awarded him sole custody.  (K.M. v. S.M.M., 2011 WL 3176534 (N.J..Super.A.D., July 2011).  While this is an extreme case, there are unfortunately others like it. 
In sexual abuse cases, the children become emotionally damaged and will need psychological help to overcome whatever was done to them.  Being actually sexually abused, however, is not the same thing as having your parent be falsely accused of sexual abuse, and they are certainly not equally-damaging events.  But they both cause their own distinct emotional damage in their own way.  Each case is different, with their own timeline, history and facts.  It is through the efforts of the courts, experts, attorneys and hopefully of the parents as well, that the best interests of the children are ultimately served.  One way or the other, the Court must find out what really happened so that the appropriate intervention or result can be quickly decided or put into place.  The Court must balance Constitutional rights of parents with its duty to protect vulnerable children under its jurisdiction.  When one parent is found to be impaired or in some way put a child at risk of harm, it is up to the Court to order and to enforce appropriate safety measures, set up forensic assessments with strict deadlines for completion of reports, and to order the appropriate therapeutic interventions for the parent(s) and child.  Once the Court is satisfied that it is safe for the child to be reunified or to have contacts with the parents, most agree that this should be done.  We will discuss therapeutic reunification and supervised visitation in subsequent blogs posts.  

Good luck!
Jonathan D. Gordon, Ph.D., J.D.

    Please note, this blog is for general 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.
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