© 2003-2019 by Arlaine Rockey, Attorney at Law
Why Aren’t the Children Protected?
When allegations of child sexual abuse (or child physical abuse or sometimes domestic violence against the protective parent) 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 child physical or sexual abuse or domestic violence in the home. 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 (which includes being exposed to domestic violence perpetrated against one of the parents) must report it to Child Protective Services (“CPS”). CPS then must investigate. If there is a custody case (or domestic violence protective order case) ongoing, it is customary for CPS to be highly skeptical of sexual (or physical) abuse (or domestic violence) allegations. Perhaps worried about being pawns, CPS generally just doesn’t want to get involved. This aversion, unless there is clear medical evidence of sexual abuse (like a venereal disease or pregnancy), which is extremely rare, 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.
Hundreds of 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 mis-diagnose them with alleged mental disorders like Borderline Personality Disorder, Munchausen’s Syndrome (aka Factitious Disorder by Proxy), or a Delusional Disorder, even Folie à deux (shared delusional disorder, where the protective parent is delusional that the child has been abused and has “induced” the same delusion in the child victim). 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 child 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? 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, particularly when they coincide with ongoing litigation, 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
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 attorney’s fees, 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 litigation 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 your own attorney’s fees and all litigation costs either yourself or through your family, friends, credit cards, or loans.
Your goal is to protect your child or children 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 protective (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.
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. See my articles “Prepare for your Consultation” and “Gathering Evidence” for more information about it. 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
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
Child’s drawings or writings
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, and those witnesses who you told about things that happened soon after or while they happened, 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 former spouses 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. 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 and if your attorney approves, 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 only if legal, tape conversations between the abuser and your child. You need to get legal advice for your state before taping anyone. Generally, it is against federal and state laws to secretly tape any conversations to which you are not a party. You certainly cannot secretly tape any phone calls across state lines because it is a criminal violation of federal law. You can also discuss with your attorney secretly videotaping some of your child’s sexual acting out behaviors. It is best not to interview your child about what happened, but if you do, you must use open ended, non-leading questions (starting with how, what, when, why, where), and never identify an alleged perpetrator in the questions — only the child should supply that information. If secretly taping your conversation with another person is legal in your state (or taping your child of whom you have legal custody), after you get legal advice to proceed, and you end up taping the child, never start the tape after the child made a disclosure of abuse by saying something like “tell me what you just told me.” You have to just run the tape and see if it naturally comes up again. It is not wise to ever tape doctors or other medical personnel.
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 (unless the child is old enough to testify). 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. However, remember that children repeat everything, so never tell the child what to tell someone else and definitely never say “tell what daddy did to you,” because, if (when) the child repeats that phrase, it usually will be interpreted by the professionals as you “coaching” your child to make sexual abuse allegations.
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 and filming you. You cannot risk getting arrested for anything, like driving drunk or doing drugs. You need to be careful who you let in your house or your car and especially who you let around your child or children. 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.
Combatting 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 your child(ren) and others that you are encouraging 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, while following Court Orders, 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 abusive 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. Moreover, if evidence of alienation is shown in the custody (psychological) evaluation or any other evidence (including your derogatory communications with the abuser or 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 (or as Court Ordered), preferably from a cell phone so you will have a record of the telephone number called. (It is possible for your attorney to ask the Court to Order that these calls can be taped, but without a Court Order, you can never tape a conversation between two other people when you are not a party to the conversation)
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, in which case you can tell him he can schedule a separate appointment with or otherwise communicate with the teacher — as long as it is not prohibited by Court Order), and if he does not attend, send him an email letting him know what happened and what the doctor said or recommended
Make copies of all school report cards, progress reports, notes from teachers, and examples of the child’s school work and send these to the abuser preferably by text saying this is [describe what it is with the date]. Keep copies of your emails and texts and voicemails you receive and keep the originals or copies of the things you have sent. [When you screenshot texts (or emails), you must get the entire conversation (show the date and times if possible) by making sure the bottom line of the first screenshot is the first line of the next screenshot and so forth, so they overlap).
Send the abuser school pictures, even a few extra for his family, by text is better than email because the actual pictures will show up (not just the file name of it), and keep a copy (screenshots) for yourself.
Be polite and professional in all your communications with the abuser. Remember, everything you say can and will be used against you. Always assume you are being taped.
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, 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.
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 file a case to obtain a domestic violence protection or restraining order to protect yourself and the child from the abuse. Most custody laws now include that the Court should also consider evidence of domestic violence in the custody determination. 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 general rule is to lessen the variables). 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-V 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 and approval, you might want to 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 psychological tests, some questions that are slighty negative about yourself are asked. 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 seem dishonest, like you are trying to make yourself appear better than you are. You need to answer honestly and try not to make youself 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 a different 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 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.
Telling and showing the Court that you have a support system of friends, neighbors and relatives who are willing 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.
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 may cross state lines, like sending threats through the mail or crossing a state line to violate a domestic violence restraining order.
If you run with your child against any court order or law, you will most likely be committing a felony. When 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.
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. 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.
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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. Any statements that are legal or other opinions, are those of attorney Arlaine Rockey, having handled hundreds of child sexual abuse cases over three decades.
If one child is being sexually abused, all your children, to whom the abuser has access, are at risk of being sexually abused.
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.
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.
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.
 Everyone has the constitutional right to not incriminate themself under the 5th Amendment to the U.S. Constitution; however, this only applies where you are at risk of future criminal prosecution. For example, if a witness has been granted immunity from prosecution regarding those facts, then the witness cannot “take the 5th.” Likewise, in some states, if a witness takes the 5th in a civil case, then the judge (or jury) is allowed to infer that the answer would have been incriminating and that was why the witness took the 5th.
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.