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

Your Testimony Continued

Here are some examples: If a father changes diapers and bathes children, he is viewed as a saint. He gets extra credit. If a mother does it, she gets no points because that is her job. If a mother works full time, or god forbid, overtime, she is viewed as having abandoned her motherly duties. If she has a boyfriend, she is a slut. Throw sexual abuse allegations in the mix and mothers are viewed all the more skeptically by the Court and every other professional involved in the case prior to and at trial.

Your attorney should review your testimony with you prior to trial. You should review your chronological history before you testify. Dates are very important. If you cannot remember a date when you are testifying, do not guess at a specific date, either say you cannot recall or give a general timeframe. Details are very important. You need to paint a picture for the judge so that the judge can see what you're describing as if she or he is watching a movie. You should think of all your five senses while you are testifying and describing what happened. Tell the judge what you saw, heard, felt, smelled or tasted. Take yourself back to the moment you are describing. The more detailed your testimony is, the more believable it will be.

Living with the Law

In the beginning of this article, I outlined some possible reasons why sexually abused children are not protected by the Courts. Sometimes, every so often, judges do get it. Sometimes children are protected. However, you need to also know that there are gradations of protection. The judge might totally stop the abuser’s visitation until the abuser gets some help. The judge might give the children therapeutic visitation with the abuser, which generally entails going to therapy together once a week, or the judge might give the abuser visitation supervised by someone else. You can even ask the judge to order the abuser to pay a person from a nanny service to supervise the visits if there is no one else available.

Unfortunately, when there is therapeutic or supervised visitation, the abuser is probably going to try to impress the supervisor so that he can come back to Court with a motion to modify his visitation to try to get unsupervised visitation. You need to be aware that just because the trial is over, it does not mean that the case is over. These types of cases can drag on for years. Courts have jurisdiction (the power to hear the case) over children in custody cases until the child turns eighteen or until one parent dies or has his or her parental rights terminated, whichever occurs first.

If supervised visitation is not going well or if the abuser refuses to attend the visitation for several months and you have a finding of physical or sexual abuse by the Court, you may want to consider filing a Petition to Terminate the abuser’s parental rights (“TPR”). In many states, if the abuser does not pay child support for a long period of time, that is also a legal ground, or reason, to TPR. The burden of proof in a TPR hearing is more difficult than in a regular custody case, and not only do you have to prove that there is at least one legal reason to TPR, but the Court also has to find that it is in the child’s best interests that the abuser’s parental rights are terminated. However, it does happen, and if you have that opportunity, you might want to take it because then you have sole control over the abuser’s access to the children in the future.

If you lose your custody case, you need to know that it is rare for a custody case to be overturned on appeal. The reason is because Courts do not want to move children around from home to home. The policy of all Courts is to have permanency for children; so, the appellate courts give the trial judges wide latitude, also known as broad discretion, in formulating custody orders. In each state, there are two levels of Appellate Courts. Generally, the first level is called the Court of Appeals, and the second level is the state Supreme Court. Rarely, you can appeal to the United States Supreme Court if you lose in your state Supreme Court. When you appeal your case, you do not get to put on new evidence or testimony. The only time to present evidence or testimony is at your custody trial itself. For your appeal, the appellate court looks at the transcript of the trial, the court documents filed in the case, and the evidence presented. The only reason you can appeal your case is a legal mistake made by the trial judge, either at trial or in the custody order. You cannot just appeal because you lost your case. If there is no legal mistake, there is no ground for appeal. Sometimes there are only minor mistakes that would not change the outcome of the custody trial, called “harmless errors.” If the appellate court finds that the errors of the trial judge were harmless errors or that the trial judge did not abuse his or her discretion, then the trial judge’s custody order will not be overturned on appeal.

If you are unable to protect your child by way of your custody case, you can consider any criminal charges that might be able to be brought against the abuser, even for other things that the abuser has done wrong. You should consult your attorney to help you evaluate this situation, and if appropriate, contact the authorities. Remember that generally a defendant will get more prison time in Federal Court than in state court. Federal criminal law generally applies to things people do wrong that do or can cross state lines, like sending threats through the mail or crossing a state line to violate a domestic violence restraining order.

There is an underground network that tries to protect children from sexual abuse[8]; however, if you go underground with your child, you will most likely be committing a felony, and if your child is found, then the abuser will stand a good chance of gaining permanent custody of your child, and you may well end up in prison. Furthermore, life underground is incredibly stressful, and it robs your child of the childhood you wanted your child to have.

A more realistic option might be to make sure your child stays in therapy so that she or he will be more likely to disclose any future abuse to the therapist. Teach your child about good touches and bad touches, boundaries and private parts.[9] Do not allow your child to be alone with other children if your child has acted out sexually. Continue to document evidence without letting your child or the abuser know that you are doing so. Remember, disclosure is sometimes a process. Hang in there, get some support from others in your situation and be vigilant. If there is a significant change in circumstances, which could be new evidence of sexual abuse, you can file a motion to modify your custody order.

If you and your attorney have done everything you can think of to prepare and to try your case, then you will be able to live with the outcome a little better, no matter what it is. You want to minimize the “what ifs.” Sexual abuse is hard to prove, especially where there is no disclosure by the child, no medical evidence and no confession by the abuser. Yet, having these top three pieces of proof is rare. You need to be realistic when you begin your case. However, you must do all that you can to protect your children now before this case is over because after the permanent custody trial is over, you cannot go back and bring up evidence that occurred prior to that trial. You have to bring it all out now or that evidence will be lost.

End of Article

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[8]This underground has been profiled on tv programs such as “Dateline,” and allegedly involves a woman named Faye Yager.
[9]In doing all this though, you need to be sure not to allow your child to become alienated from the abuser (unless the abuser chooses not to visit, in which case, consider TPR as soon as possible) and to follow the suggestions above for ways to continue to have evidence that you are including the abuser so that he cannot turn the tables on you and try to get custody from you based upon parental alienation.
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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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