Custody Cases
Protecting Children from Sexual Abuse
© 2003 by Arlaine Rockey, Attorney at Law[1]

Why Aren’t the Children Protected?

When allegations of child sexual abuse 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 physical or sexual. 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 must report it to Child Protective Services (CPS). CPS then must investigate. If there is a custody case ongoing, it is customary for CPS to be highly skeptical of sexual abuse allegations. Perhaps worried about being pawns, CPS generally just doesn’t want to get involved. This aversion, unless there is clear medical evidence of 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.

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 misdiagnose them with real mental problems like Borderline Personality Disorder or Munchausen’s Syndrome. 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 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? Some people swear that judges and lawyers are being paid under the table to take children from protective parents. Others say that federal child support enforcement money, used in part to give legal advice to fathers, is being misused to influence and possibly pay lawyers and judges, maybe even psychologists, who help fathers win custody. 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 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[2]

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 litigation costs, 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 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 all litigation costs either yourself or through your family, friends, credit cards or loans.

Your goal is to protect your child or children[3] 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 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.

Chronological History

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.[4] 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
• Night terrors
• 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

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[1]You may link to this page; however, this article may not be reproduced or republished anywhere without the author's written permission. Email ARockey@aol.com
[2]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.
[3]If one child is being sexually abused, all your children, to whom the abuser has access, are at risk of being sexually abused.
[4]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.
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