Concerns over incorrect findings in family court sexual abuse allegations

Posted Saturday, February 5th, 2011 by Gregory Forman
Filed under Child Custody, Jurisprudence, Not South Carolina Specific, Of Interest to Family Law Attorneys, Of Interest to General Public

Perhaps because I more typically represent parents than children in family court, I have long been concerned with the risks of incorrect findings that a parent has sexually abused a child–the problem of “false positives.”  The two family court cases that continue to trouble me years after their conclusion both involve fathers who were found to have sexually abused their child.  In neither case was I their trial attorney, yet in both cases I had great concerns that the allegations against my clients were false.

In the first case, my concern stemmed from the timing of the allegations.  Mother had made these allegations twice against my client, both times in the midst of custody disputes.  On both occasions these allegations were made immediately after the guardian ad litem issued a report recommending that father have custody of the child (these were the days in which guardians were expected and allowed to make explicit custody recommendations).  In the first instance, mother was not believed.  In the second instance, my client allegedly decided to “celebrate” the guardian’s recommendations by, later that same day, penetrating his daughter with an object with such violence that she was bleeding from her genitals.  This child had always preferred living with her mother and I have always suspected that mother herself concocted a plot to violate her daughter and have her daughter lie about the identity of the violator in order to obtain custody.  This time, DSS and the courts believed the mother and my client was found to have sexually abused his daughter.

The second case involved “credible” allegations that my client had sexually molested his pre-school age son.  Among the allegations the child abuse experts found credible were the son’s claims that “daddy had cooked his wee-wee in a pot” and put his wee-wee “down the drain.”   Here, I should note that this child was not missing his genitals.  I would think this fact would be quite meaningful to the sexual abuse “experts” that this child’s report was not credible.  Another of the serious allegations the child made was that my client stuck his finger up his butt causing “poop” to come out.  These sexual abuse examiners were made aware–by mother and her family–that the child was frequently constipated and given suppositories.  One might hope that these sexual abuse examiners would connect the constipation and suppository use and the child’s story about his father to conclude that my client had given his son suppositories but that evidently is hoping too much.

As a result of these sexual abuse findings, these fathers are unable to see their children until they acknowledge their sexual abuse to their child.  Since these fathers contended–in my opinion possibly accurately–that they did not abuse their child, I am unsure whether they ever resumed a relationship with their children.

I attended law school the same time my wife attended social work graduate school.  It was an era of repeated day care sexual abuse media stories.  I remember debating whether such abuse was occurring with my wife.  From her social worker perspective, the problem of mass day care-related child sexual abuse was real and frightening.  From my skeptical law student perspective, I didn’t see how children could report subterranean sex dungeons or violation with sharp kitchen implements without there being a bit of physical evidence to corroborate these allegations.  Over time our culture has gotten more skeptical over mass sexual abuse allegations.  The government’s ability to marshal significant resources to pursue such claims is one of the reasons I think there should be a higher burden of proof for child abuse cases.  However, I think our legal culture is well aware of the risk of false allegations of sexual abuse.

However, if the risk of false positives in child sexual abuse cases weighs upon me, my case that resolved this week has made me ponder the risk of accurate allegations of sexual abuse being disbelieved by the court–the risk of “false negatives.”  I began my representation in May 2006, just four days prior to father’s motion for temporary custody or visitation.  At that point, the primary evidence my client had to support her request that father only have supervised visitation was her eyewitness account of husband doing something inappropriate, and slightly sexual, with the child.  Her husband vehemently denied this allegation and noted that the timing of wife’s allegation was suspect–true–and without corroboration–also true.

Upon being retained I asked father’s attorney[who was not his attorney for trial] if she would consent to continuing father’s motion to give me more time to prepare.  Father’s attorney agreed to this request.  Soon we agreed to a guardian ad litem for the child, and that guardian began investigating.  The guardian suggested, and we agreed to, psychological examinations for the parents.  Father’s psychological examination raised significant concerns regarding the child’s safety if left in his care.

Through the 56 months of my representation, father was never allowed to be alone with the child.  Slowly, as professionals within the family court system–guardians ad litem, psychological evaluators, mental health professionals,  judges, attorneys–observed father’s behavior, the concerns my client raised came to be believed by others, and additional, more frightening concerns, developed.  By the middle of trial, the family court judge hearing the case was very comfortable approving an agreement in which father relinquished his parental rights, despite the fact that there was no stepfather ready to adopt her.

Throughout this litigation I have frequently ruminated upon opposing counsel’s initial agreement to continued the first hearing.  Were the circumstances reversed–my client had gone without seeing his daughter for months and now mother’s counsel sought to continue my hearing to provide additional time to prepare–I almost certainly would not have been so gracious.  Yet, had opposing counsel not agreed to the continuance, father would most likely have been awarded unsupervised visitation and my client and I shudder over what might have happened to the child then.

I sometimes wonder if opposing counsel agreed to the continuance because she too had concerns about her client and she didn’t want to feel responsible if her client harmed the child.  I wonder if I too would act accordingly in such circumstances.  I further wonder whether it would be an ethical violation of my duty of loyalty to do so (See Rule 1.7, South Carolina Rules of Professional Conduct) and how I should balance this duty of loyalty to my client with my duty to respect the rights of third persons, which in this circumstance would be the right of the child to be free from potential abuse by a parent. See Rule 4.4, South Carolina Rules of Professional Conduct.

Family court judges are asked to resolve many disputes in which it is likely that horrific and spurious allegations are based on little more than the parents’ mutual acrimony.  Ferreting out the few such allegations that are actually worrisome from the numerous false ones is a task I would not want the responsibility of undertaking.

Meanwhile, the risks of false negatives in cases such as this one continue to weigh upon me.  I see no easy or obvious resolution.

4 thoughts on Concerns over incorrect findings in family court sexual abuse allegations

  1. MJ Goodwin says:

    A case from 2005 haunts me. In this case, I was the Guardian ad Litem for a then 8 year old boy and his younger brother. For years, the 8 year old had made allegations that his mother’s family (her father and brother) were sexually abusing him. This was a private custody case, between the paternal grandparents and mother (father was in prison), because DSS did not believe the child. (I will not comment on the DSS investigation due to my current connections with DSS). I believed the child because of his graphic description (which included demonstrations of being forced to perform oral sex). Due to a variety of problems with the case, which included the grandmother being extremely distraught (to the point that she attempted to film the child describing what happened), and over my vehement objection, the judge returned custody to the mother. Twenty-four hours later, the child attempted suicide. He was hospitalized. The judge entertained my motion to reconsider, ordered a new DSS investigation (which involved a new case worker and actually uncovered some evidence in the form of a forensic interview) and then added a restraining order that prevented the mother from having the children around her father and brother. He also added that if the restraining order was violated, then DSS was to remove both the children. Well, of course that was violated shortly thereafter and DSS became involved, this time the children were removed. I was no longer involved in the case from that point, but have heard about it over the years. The child continues to suffer, despite therapy, and continues to live with foster parents. I should add that foster care was something he was afraid of when I was involved. When I went to visit the child after his suicide attempt, he told me that he had trusted me and that I had let him down. This is my worst experience as a Guardian ad Litem.

    So sexual abuse cases, if true and not believed, are just as bad (maybe worse?) than cases that are not true and are believed. I don’t know what a good answer is for this. The agencies involved need to do a good job investigating these things. The long term ramifications of not doing so are just too high for everyone involved (including attorneys and GALs).

  2. There is no way to get it right in every case of alleged child sexual abuse with the result that there are many regrets and much second guessing. In the mid-seventies, I represented the father in a run-of-the-mill custody case and narrowly lost what I considered to be a close case. There were no allegations of abuse. I did not give the case much thought for about thirty years until my client was convicted of having abused the children as infants. Looking back, I wonder if there is something I should have seen or should have done.

    My belief is that if all child sexual abuse allegatations made after the filing of marital litigation or in ancitipation of marital litigation were either inadmissible or were a bar to the reporting parent gaining custody, fewer children would be harmed than under the present system where a parent is allowed to “drop the atomic bomb of custody litigation.” This is analagous to the example that a clock that is broken tells the correct time more often (twice a day) than a clock that loses a minute per day (once about every four years).

  3. Linda says:

    It seems there are many cases in my state, Arizona, where men are falsely accused and incarcerated as this states carries minimum sentence of 25 to life if the case is lost. There is a higher than average plea bargain acceptance due to the threat of such a long term of imprisonment even in cases where the father is innocent. Would you want to take that chance? My son is doing 10 years as his wife who wanted a divorce and due to religious reasons could not have happened because of her religious upbringing and beliefs (JW) It only took her 4 weeks to be in a relationship with one of his friends. She has the kids, more money, a new vehicle and he is paying for her to get an education. The kids now call him daddy. She was very careful as to the timing of filing for a divorce. She is no dummy and spends hours on the internet doing research. The Judge essentially told my son he was going to lose due to the exposure he and his daughter would get at trial. He also asked for an attorney during interrogation but was denied one. After hours of abuse and coercion he admitted to a crime he did not do. Everywhere he turned he was “screwed” Then as his mother I was deposed for nearly 2 hours by the prosecution as I was one of the main witnesses as my granddaughter told me it was her uncle not her daddy. The prosecution flipped me, handed me a subpoena and I was no longer a witness for the defense. I was livid. I felt like a criminal. I felt like a traitor. My daughter-in-law is a nut job. The children are still exposed to the uncle. My son and I have lost all. His rights and custody were taken away. They won’t let me see my granddaughters that I raised since they were born. It goes on and on and on. We have lost everything. No one cares! CPS reports were filed by my son. She has a really shakie background. We are indigent. no one will ever believe him again. he will be a registered sex offender. The system is so broken. The lead detective on the case turned out to be a relative of my son’s good friend from Christian Recovery and they discussed the case over beer and barbeque one Sunday afternoon. How can a detective and a lead person in a twelve step program talk shop when they are suppose to have fediciary responsibility? Can Detectives just discuss cases at their family barbeque? What happen to 12-step programs motto ” what is discussed here stays here? Talk about a good ole boys club and cronyism and nepotism, need I say more? It all sucks. There is NO JUSTICE! you want to protect kids but this? Thanks!

  4. Kristen Viikinsalo says:

    I have read so many comments that speak of false accusations against fathers….I have been divorced for 4 years and my now 12 year old daughter has begged to live with me since the 1st day our female judge who is a staunch advocate of joint legal and physical custody prevented my daughter from being where she wanted to be….she had no relationship with her father who is socially awkward and rarely even speaks to her. Further, he was given medical power which he interprets as complete control without allowing me any involvement.
    My daughter recently shared with a student at school by text from her fathers house that he had abused her sexually for 3 years immediately following our divorce. The student told the school counselor who then called DHR. A case was opened and I was called to come get her for two months of temporary full custody. Because he had full medical power, I had a greatly difficult time getting her help. They anted me to get him to give me medical power…how absurd under the circumstances….during the case, my straight A student who is a member of MENZA with an IQ of 159 who had never been in trouble a day in her life tried to commit suicide multiple times, had to be admitted to an adolescent psych hospital 3 times for severe anxiety, panic attacks, nightmares and what the head psychiatrist described as flashbacks…..she wanted to die. The case lasted for 4 or 5 weeks during which she had to endure a forensic physical…they found that she was still “in tact” but said that 90% of the girls are and that the upcoming video taped and recorded forensic interview would carry more weight. Keep in mind that I knew NOTHING about the abuse until I was called at 8PM on September 21, 2016 to come pick her up from his home by DHR….it was the school counselor who reported it and I do not know the child she disclosed the abuse to…to this day, I don’t her name….Sadly, while in one of her hospital visits, the lead psychiatrist told her to her face that she would never have to stay with her father again. A social worker told her that he would only be allowed supervised visitations….she believed them and was so relieved. I was told that on Novmber 18th, the Asst. DA., the DHR case worker, the forensic interviewer and others would meet and decide the case. Our social worker who had been on the job 10 months sat in my home and told my daughter and me tht she felt terrible for Maya and that she did not want to see Maya go back to her father so she was going to meet with her supervisor to devise a plan to protect her. The case worker told me to call her on the 18th to find out the results. I called and left a message and she never called back…I called the next day and left a message….so 4 days later after 4 days of absolute anxiety by my 12 year old, I received a call at work form the case worker saying that they did not have enough conclusive evidence and that she would have to resume her 7 days on 7 days off visitations immediately. I had to have a police officer come to my home to be present when I shared the news because I was afraid she would commit suicide again….I wound up having to take her to the hospital again for severe depression and panic attacks. After one day at the hospital, they told me that since the DHR case was closed and I had been the one to admit her, they would have to charge me $10,000 per day since he was in charge of medical and is the insurance holder…so I had to check her out at 3:30 PM and return her straight to her fathers at 4:00 the day before Thanksgiving since he got her for all of the holiday…..two hours after arriving at his home, she ran away to the next door neighbors after she and her 22 year old sister herd him tell her she was a “deeply disturbed person and a liar.” he would not let her come here for the night so the police let her stay at the neighbors. The next day he picked her up and my 22 stepdaughter heard him tell her that if she ever ran away again he would have her committed….. this is a “father” who just married a woman he met on Christian Mingle dot com….this is a father who used his medical power to call the pharmacy the day after she was removed from him to block me from getting her antidepressants and anti-anxiety meds….
    he system failed her….she told 3 professionals that if dshe had to go back to him, she would kill herself….now she is too afraid to even run away. He discontinued her counselling services with a counselor she loved and had seen for 4 years….I have filed for an emergency temporary custody motion but because DHR returned her to her father, she will most likely lose. This is a child who is 1st chair oboe in honors band, a member of the Jr. Honor Society, a member of the Scholars Bowl team, the math team, an Ambassador for the school…..
    Our divorce judge was judge was just voted off the bench so my attorneys say that she may not even hear our motion….what can I do? What would YOU do? I lost my health insurance in the divorce, had not worked in 10 years because he ask me to stay home for ten years and raise his daughter and mine…I have blood clots in my lungs and have not been able to take my thinners in 4 years….He makes $150,000 a year and I work part time making $12.75 per hour before taxes….I can not compete financially in court with him. I receive child support and alimony but I have 35,000 debt due to having to garnish his wages twice and tyig to maintain our home until I wound up having to sell our $300,000 home to him for $5,000 because we could not pay the bills….HOW COULD THEY THINK THAT IT IS SAFE TO SEND HER BACK???

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