That ship has sailed (or implicitly condoning past child abuse or neglect)

A decent subset of my custody and visitation cases have one parent raising abuse or neglect allegations that predate an agreement (whether a temporary consent order or an agreement incorporated into a final order). While not trying to be heartless, the best advice I can typically give these clients is “that ship has sailed.”

There are two exceptions to this advice. The first is when the agreement is not inconsistent with claims that the other party abused or neglected the child. If that agreement has the other party’s visitation supervised or limited, a claim of past abuse or neglect is not inconsistent with that agreement–especially if that agreement specifies some type of treatment for the other party to remedy the abusive or neglectful behavior.

The second exception is when the alleged abuse or neglect continues past the date of the last agreement. Here one can use the “old” abuse or neglect to demonstrate a pattern of misbehavior. However, in this situation, one is still relying upon the recent abuse or neglect to demonstrate changed circumstances necessary to limit the other party’s contact with the child(ren).

The problem with making allegations of past abuse or neglect when one entered a subsequent agreement that is not reflective of this concern is that it makes the accuser look bad in two distinct ways. First, in making such allegations, one is basically acknowledging that one has failed to protect the child from abusive or neglectful behavior. This could meet the definition of “Child abuse or neglect” under the Child Protective Services code, specifically, S.C. Code § 63-7-20(4), which states:

“Child abuse or neglect” or “harm” occurs when the parent, guardian, or other person responsible for the child’s welfare …(a) inflicts or allows to be inflicted upon the child physical or mental injury or engages in acts or omissions which present a substantial risk of physical or mental injury to the child…

Emphasis added.

In alleging such abuse or neglect by the other parent and having agreed to allow that other parent substantial and unsupervised contact with the child during a time this abuse or neglect occurred, one arguably “allows to be inflicted” a substantial risk of injury to the child. At a minimum, having to explain to a family court judge why one entered an agreement that would allow such abuse or neglect to continue will be interesting–and not in a good way.

The second way this accusation makes a party look bad is that, if the family court judge doesn’t believe it, this “false” accusation can be a major statutory factor in custody. S.C. Code § 63-15-240(B)(6) makes a factor in custody determinations, “the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate…” False accusations intended to diminish the other parent’s relationship with the child are often large factors in custody cases.

Even accusations made prior to a custody case being filed can cause problems later on. I often represent unmarried fathers in custody cases where the mother won’t allow overnight visitation prior to a temporary hearing based on specious allegations of unfitness. Once a motion for temporary relief approaches, such mothers often settle visitation. However they are now locked into a position in which they agreed to give an unfit father overnight visitation. How do they explain that to the guardian? How do they explain that to a judge a trial? Absent evidence that the other parent has remedied the alleged unfitness, it is difficult to settle any custody or visitation case on favorable terms once the unfitness allegation has been made.

So parents who want to raise past fitness allegations, especially after they have entered agreements giving the other parent substantial and unsupervised visitation, should be cautioned before doing so. Absent the factors discussed above, it will be difficult for them to advocate a position at trial that doesn’t make them look manipulative.

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