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

Combating Allegations of Parental Alienation continued

• 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 with a cover letter saying please find X enclosed. Keep copies of your letters and keep the originals or copies of the things you have sent.
• Send the abuser school pictures, even a few extra for his family, again with a cover letter, and keep a copy for yourself.
• Be polite and professional in all your communications with the abuser. Remember, everything you say can and will be used against you. He is probably taping your every call.

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 and really should not tell anyone what is going on in it, 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.

Domestic Violence

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 obtain a domestic violence protection or restraining order to protect yourself and the child from the abuse, and that most custody laws now include at least as a factor that the Court should also consider evidence of domestic violence. 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 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-IV 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.

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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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