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

Chronological History Continued

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, 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 his former wives 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.[5] 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, 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 generally it is not legal, tape conversations between the abuser and your child. You can also discuss with your attorney secretly videotaping some of your child’s sexual acting out behaviors. 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. 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.

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 you or whether you might have bad luck and get caught driving drunk or smoking pot. 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.

Combating 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 encourage 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, 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 other 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.[6] Moreover, if evidence of alienation is shown in the custody (psychological) evaluation or any other evidence (including 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, preferably from a cell phone so you will have a record of the telephone number called
• 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), and if he does not attend, send him an email letting him know what happened and what the doctor said or recommended
  

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[5]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.
[6]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.
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[1]This article may not be reproduced or republished anywhere without the author's written permission. Email ARockey@aol.com
[*]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.
[*]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.
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