The Role of Child Sexual Abuse in Custody Cases

By: IRA H. LEESFIELD
Leesfield Scolaro
2350 SOUTH DIXIE HIGHWAY
MIAMI, FLORIDA 33133

I. INTRODUCTION

It would be impossible to write a short article about the role of child sexual abuse in custody cases. Thousands of articles and cases refer to this enormous topic in a variety of ways. The following article is intended to be an outline of some of the issues an attorney needs to consider when dealing with child sexual abuse in the context of custody litigation. Since there has been much debate concerning whether the allegations of child sexual abuse in the custody context are true, a large portion of this paper will be devoted to exploring that subtopic. The next section of the paper will outline the important considerations of child competency and hearsay in a child sex abuse case. Finally, this paper will briefly address some options the courts may want to consider, for the best interests of the child, when dealing with allegations of child sexual abuse.

III. WHY WE THINK ALLEGATIONS OF CHILD SEXUAL ABUSE ARE FALSE

One major study has found that approximately 2-10 percent of all family court cases involving custody and/or visitation disputes involve a charge of child sexual abuse. [FN - T&P study] Since the notion of abusing one's own child in our society is so repugnant, our natural reaction to such charges is often, "The alleger must be fabricating these charges in some kind of desperate attempt to hold on to his or her children longer," or more simply, "The allegation must be false." The context of a custody dispute makes an allegation of child sexual abuse even more dubious to some is coming up in this highly adversarial setting. In Campbell v. Campbell, 604 A.2d 33 (Me. 1992), the Supreme Judicial Court of Maine thought that the mother:

employed what is becoming a standard strategy in contested custody cases: seek an ex parte order for protection from abuse to gain custody of the children, transfer the divorce case to the Superior Court in order to delay its resolution, and hope that the cae takes long enough to conclude that she can successfully argue the status quo to keep the children in her custody thereafter.

Id. at 35.

However, the above-referenced study has also found that only eight percent of all child abuse reports are demonstrably false. Thus, the large majority of the reports are either true or "unsubstantiated." [FN - which says that I'll talk about "unsubstantiated" later] The Thoennes & Pearson study, conducted approximately 10 years ago, has received much attention and acceptance. The Honorable Judge Leonard P. Edwrads of the Superior Court of Santa Clara County, California wrote a law review article in 1987 relying on the study. [FN - cite to Edwards article] Other family law scholars have relied on the same study for their academic works as well. [FN - cite to Myers and Fahn articles]

IV. WHY AN ALLEGATION OF CHILD SEX ABUSE MIGHT OCCUR DURING A CUSTODY DISPUTE

However, there are in fact some good reasons that an allegation of child sexual abuse would not come up until the eruption of a custody dispute. First, a sexually abusive relationship might be more likely to develop after the parents separate [FN - fahn, p.9]. The abusive parent might be lonely for emotonal and sexual companionship, and the child is now vulnerable and accessible [FN - fahn, p.9]. Furthermore, in instances where the abuse was occuring when the family was intact, the separation of the family now creates an opportunity for the child to disclose the abuse. [FN -fahn, p.9] A sexually abused child may feel pressure to not say anything about the abuse in order to keep the family intact while it was intact. [FN - fahn, p.9] However, if the family has separated, that pressure is no longer present, and the abused child may feel for free to confide in the other parent. [FN - fahn, p.9] Even further, in instances where the nonabusing parent actually knew of the abuse, but did not say anything while the family was still intact, the now separated family gives the nonabusing parent the opportunity as well to be more objective about the reality of the situation and repot the abuse to an appropriate authority. [FN, fahn, p,9] Thus, despite the possibility that allegations of child sexual abuse are being falsely raised in the context of a custody dispute in order to gain some sort of tactical advantage, there also exist many legitimate reasons why these allegations would occur in such a seemingly inappropriate context.

V. MOTHERS HAVE A LOT TO LOSE BY ALLEGING CHILD SEX ABUSE

There are a varierty of factors which indicate that the allegations of child sexual abuse, even though arising in the context of a custody dispute, may be true. Most notably, the mother, who is the usual accuser [FN - see fn 16, p. 16 of Fahn; but see, Smith and Beeks 1997 cases], has a lot to lose by makng the allegations. First, in a decisive custody dispute where there is not joint custody, the mother usually is the parent who ends up with custody. Previously, the "tender years" doctrine presumed that the mother was more fit to have custody of a young child. Although this old doctrine has been supplanted by the technically gender-neutral "primary parent rule," which affords the primary parent preference in custody proceedings [FN - Pikula and Tiggelaar cases], the primary parent more often than not is still the mother. [FN - see p.2/16 of Fahn article] Thus, a mother who is likely to receive custody of the children anyway, if there is no joint custody, chooses to put herself through a prolonged court battle if she falsely alleges child sexual abuse by the father. It is hard to imagine that a mother would make such a choice

Furthermore, a mother who makes a false allegation of child sexual abuse exposes herself to a variety of punishments. For example, several states have enacted statutes making a false allegation of child sexual abuse actionable [FN - see MN,TX,TN and CA stats]. Courts have also punished false allegations with their sanction power. For example, in In the Matter of the Marriage of Stockham, 928 P.2d 104 (Kan. Ct. App., 1996), both the mother and father of the children tried to modify their joint custody arrangement. At two different times during the modification proceedings, the mother accused the father of sexually abusing the children. The court appointed an independent investigator who found absoltutely no evidence of abuse. Two of the mother's prior attorneys urged her not to make the allegations, but, with the help of a third counsel, she did anyway. The court used its state equivalent of Federal Rule of Civil Procedure 11 and sanctioned the mother thousands of dollars for making these allgations witout any reasonable basis.

In addition to losing custody of their children, and potentially being sanctioned for making false allegations, mothers have yet another reason to not make false allegations of abuse: some courts may think that the mother's allegation indicates that she is unwilling to cooperate with the accused father in a custody arrangement. Courts have emphasized their preference that an ideal custody arrangement is one in which both parents cooperate so that they can be involved with their children despite the divorce. [FN - fn20 of Fahn article, In re Bolin also (?)]. An allegation of abuse by the mother may, and indeed has in the past, led a court to place sole custody of the child in the hands of the accused abuser.

Mothers may report incidents of child sexual abuse because they realize that they have a legal duty to do so. [FN - Ellis case]. It is indeed ironic that the law requires mothers to report abuse when the result of the reporting may be a sanction, or a presumption that the mother will not cooperate with the father in the custody situation.

Perhaps the most disturbing evidence that many of the child sex abuse allegations are true is the existence of the modern "Underground Railroad," also known as the "Children of the Underground." [FN, fahn,3] Based in Atlanta, the Railroad is an illegal network across the country that helps to hide parents and their children whose allegations of child abuse have been disbelieved by the courts. [FN, fahn 3] Often, this aid consists of providing temporary shelter in private homes and money to finance lives on the run. [FN fahn 3] The Railroad's ultimate goal is to enable the parent to assume a false identity and establish a new life. [FN fahn 3] The Railroad screens it applicants turning away those who appear to be suspicious, and only takes cases when they have already been through the judicial system and been disbelieved. [FN fahn 3] Faye Yager is the founder of the Underground Railroad in America who admits having helped thousands of people. [FN fahn 3] There are other such organizations around the world in Australia, Canada, England, Greece and Japan. [FN fahn 3] The fact that thousands of mothers have opted for the Railroad's unconventional and unstable lifestyle suggests that many of thier children, if not all of them, have had to deal with true child sex abuse, whether the courts believed them or not. [ FN fahn 3]

The highly publicized story of Dr. Elizabeth Morgan serves to highlight another example of the possibility that disbelieved mothers, who alleged child abuse, may have in fact been telling the truth. Dr. Morgan languished in a Washington D.C. jail for more than two years incarcerated for civil contempt. [FN - myers 1] She refused to disclose the whereabouts of her six-year-old daughter to the judge presiding over the custody litigation between Morgan and her former husband. [FN - myers 1] Dr. Morgan claimed that her ex-husband molested their daughter. [FN myers 1] Dr. Morgan is not alone. [FN myers 1] Other mothers are hiding their children, going to jail, or getting on the Railroad to avoid having to return their children to what they believe is an abusive father. [FN myers 1] The frequency of these actions has been high enough for U.S. News and World Report and People magazines to write a articles about it. [FN - myers, fn 2, p.19] It seems highly unlikely that mothers would choose to go to jail, or choose a life on the Underground Railroad over a false allegation of child sexual abuse. These stories suggest that many mothers are indeed being truthful in their allegations.

VI. FALSE ALLEGATIONS STILL BEING MADE

Despite the aforementionesd evidence suggesting that many if not most allegations of child sex abuse are true, courts recognize that evidence on the subject is actually conflicting. In State v. Fisher, 1997 WL 126752 (Vt. 1997), the Supreme Court of Vermont commented:

it is unclear how often people are falsely accused or prosecuted for child molestation, some studies suggest that false allegations are especially common in family disputes . . . (one study found 20% of accusations in visitation and custody disputes probably fictitious; another study found false-positive incidence of 55%).

Id. at 2. Whether the research really is inconclusive, however, is not as important as the fact that courts, like the Supreme Court of Vermont, still recognize the research as being conflicting and therefore inconclusive. Thus, regardless of all the reasons and the reasearch indicating otherwise, courts are still prone to believe that a false allegation is possible if not likely.

Perhaps one reason for the continued belief that false allegations are probable is that courts are seeing them occur. For example, in Krywanczyk v. Krywanczyk, 1997 WL 85790 (3d NYAD, 1997) a father was awarded custody in the Family Court below, and the mother received visitation rights. The mother subsequently alleged child sexual abuse which the Family Court later found to be a false allegation. See also Stockham, supra.

IV. WHAT IS THE TRUTH?

Since there is evidence and research supporting both sides of an allegation in any given case, the truth becomes very hard to find. When there is an allegation of child sexual abuse made, the court usually orders an investigation conducted by one or more government caseworkers. [FN - fanh] Often, there is not enough time for the caseworker to reach a definite conclusion as to whether there has actually been abuse or not. Such a finding gets the allegation labelled "unsubstantiated." This term does not mean that the abuse did not occur, just that abuse could not be proven. The frequency of "unsubstantiated" allegations has led at least one commentator to recommend that the investigation continues until there is at least some definite answer. [FN - fahn p 2(?) ]

Part of the problem with coming to a substantiated finding is the quantum of evidence needed to support such a finding. In custody disputes, which are civil proceedings, the accuser need only acquire a "preponderance of the evidence" to sustain the allegations. However, due to the severe nature of the charge, some courts may actually be requiring a more stringent quantum of evidence to sustain the allegation, something closer to the criminal standard of beyond a reasonable doubt. In Beckman v. O'Brien, 336 S.E.2d 375 (Ga. App. 1985), the state trial court granted the father a right to visit his six-year-old daughter despite the fact that a grand jury had recently indicted him for molesting that same daughter. In reversing the trial court's determination, the Georgia appellate court suggested that the trial court improperly "laid great store in the hallowed principle that a person is innocent until proven guilty," Id. at 376. If the father were in criminal court, this principle would apply, but in the civil setting, the quantum of evidence is rightly less burdensome.

Reprinted from ATLA's (program title and date), with permission of the Association of Trial Lawyers of America. Copyright Association of Trial Lawyers of America. Further reproduction of any kind is prohibited. For more information, please contact the National College of Advocacy, 1050 31st Street, N.W., Washington, D.C. 20007, 800-622-1791.