Although the abuse of a spouse or child may precipitate a divorce case, sometimes allegations of abuse are not raised until after a divorce has been filed or a child custody case has been commenced.
When raised at that later stage in a divorce or custody case, a majority of abuse allegations are ultimately determined to be either unsubstantiated or false. An abuse allegation is determined to be unsubstantiated if an investigation is unable to confirm that abuse occurred.
Sometimes in an unsubstantiated case abuse has occurred, but there is insufficient evidence from which an investigator can verify that it has occurred. Most of the time, that determination results from the age of the children or the lack of corroborating evidence, and similar factors that make it impossible to conclusively determine whether or not abuse occurred.
Unfortunately for those wrongly accused, for those same reasons abuse allegations are rarely determined by a protective services agency to be false.
The most common reasons for false allegations of abuse are:
Misunderstanding: Sometimes the abuse allegation results from a misunderstanding, colored or exaggerated by the conflict or acrimony between the parents;
Advantage in Court: Sometimes a parent will intentionally make a false accusation of divorce against the other parent to gain advantage in custody litigation;
Mistaken Identity: On occasion an abuse investigation will reveal that a child was being abused, but by somebody other than the accused parent;
Anger or Malice: Sometimes an abuse allegation is made maliciously, perhaps even without much thought for the consequence, by an angry parent. On rare occasions a false allegation will even originate with the child.
When presented with an accusation of abuse, a court will rarely have time or opportunity to schedule a full hearing before issuing an order.
- A court may be asked to issue an emergency or expedited order based upon the accusing parent's allegations alone, before the other parent has the opportunity to hear the accusations or respond.
- The court will typically be asked to suspend the accused parent's access to the parties' children and, if the accused parent still lives in the family home, to exclude that parent from the family home.
Even if the court schedules a prompt hearing to explore the allegations more thoroughly, the court's immediate inclination will be to protect the children while the parties and their lawyers sort out the facts.
Even if cleared by the court, the accused parent may experience significant consequences as a result of the accusation. By the time the court concludes that there is insufficient evidence that abuse occurred at the hands of the accused parent, and that the parent does not pose a danger to the children, the parent will likely have been separated from the children for many months, with little to no contact or with only supervised visitations in the interim.
The parent who made the accusations will likely have been the children's custodian and primary caregiver during those months, factors that a court will weigh when evaluating the children's custodial placement.
The accused parent may also face embarrassment in the community, and a potential loss of employment. The accused parent may also be made the subject of a protective proceeding or face criminal charges, and have to incur significant legal fees in the defense of those proceedings. Those expenses could easily drain the marital estate.
False accusations fall into two broad categories: Those that are intentionally raised against the other parent, and those that are mistakenly raised. Make no mistake about it: If you know your child has not been abused, making a false report of abuse is itself a form of child abuse.
Possible consequences of a false allegation include:
False Allegations Harm Children: Children who are the subject of false abuse reports will likely go through multiple interviews with the police, social workers, and others in the course of an abuse investigation, may have to undergo intrusive medical examinations, and are placed in the middle of the conflict between their parents in the ugliest of ways. Some children, particularly younger children, may form false memories around the abuse allegations, distorting their relationship with the other parent and also their future relationships with others, potentially including eventual romantic relationships.
False Allegations Destroy Relationships: If your ex- believes that you intentionally made false accusations of abuse, you will likely never again have a constructive relationship or co-parenting relationship with your ex-.
False Allegations Can Cause Loss of Custody: If a court believes that a parent intentionally raised false accusations of abuse in order to gain advantage in a custody case, the court may ultimately award custody to the other parent.
False Allegations May Result in Criminal Prosecution: in some cases, a parent who is determined to have knowingly made false allegations of child abuse may face criminal charges.
If you have cause to suspect abuse, you can work with your lawyer or a suitable professional to get an unbiased evaluation of your suspicions and the evidence you believe suggests abuse.
If something happens during divorce proceedings that leads you to believe that your child has been abused by your estranged spouse, or somebody who has access to your child while the child in the custody of your estranged spouse, your options include the following:
Speak to Your Lawyer: If you are represented by a lawyer in your divorce case, speak to your lawyer about your suspicions and how you should respond.
Speak to a Counselor: If you, your family or your child are in counseling, you may raise your concerns with the counselor. Be aware that the counselor is almost certainly a mandatory reporter, meaning that if the counselor finds the allegations to be credible the counselor is required to report the possible abuse to the police or child protective services.
Make a Police Report: Particularly if you believe that your child is in imminent danger, you may report your beliefs to the police and provide them with any evidence you have to support your belief that abuse has occurred.
Make a Report to Child Protective Services: You may report possible child abuse to the child protective services agency for your county, which will investigate the abuse report, involving the police if appropriate.
Depending upon the facts and laws of your state, you may be legally required to report to the police any abuse that you reasonably believe to have occurred. The investigation of child abuse allegations should be performed by a qualified professional, who follows a proper protocol for investigating abuse allegations.
Particularly with young children, a parent's concerned questioning of a child may distort the child's memory. Older children may feel pressured to give answers that a parent wants to hear, and then feel locked into those answers even if they're untrue or only partially true. Children will also respond to their parents' emotional state.
As inappropriate questioning may taint the child's memory and make it more difficult to get to the truth, it's best to leave the investigation to a trained professional.
If you are accused of abusing your child and are not yet represented by a lawyer, it's time to get a lawyer.
You need to be able to advocate for yourself within the context of accusations that can have a profound impact on custody and visitation, and may even result in criminal charges. It's extremely difficult to advocate for yourself in court proceedings when anything you say in your divorce case could potentially be used against you in a child protective proceeding or criminal case.
Retain a Lawyer: You should retain a divorce lawyer who has experience defending clients charged with child abuse;
Exercise Your Right to Remain Silent: Don't discuss the accusation with anybody except your lawyer, except as instructed by your lawyer;
Gather Evidence: You should look for and preserve any evidence that is relevant to your custody case and the abuse allegations.
Identify Witnesses: Identify people who may be able to establish that the allegations are false, provide an alibi for the dates and times when abuse is alleged to have occurred, or can otherwise help support your character and cast doubt on the allegations.
Keep Calm: Although it is difficult not to respond angrily to an abuse allegation, an angry or emotional response may undermine your ability to defend yourself from the accusations or give the court the impression that you're the type of person who might abuse your ex-spouse or child.
Consider All Possibilities: If you don't believe that the other parent is making up the allegations, what may be causing them to wrongly suspect abuse?