When child custody disputes turn ugly, you need to know how to defend yourself and protect your children
My former wife filed for dissolution of our marriage on September 1, 1989, the 50th anniversary of the start of World War II. I was out of town salmon fishing in the Queen Charlotte Islands of Canada when she filed and I was surprised as the Polish were in 1939. On October 31, 1991, 26 months later, the superior court judge awarded me primary residential status for our minor children, then ages 5 and 7. These children had been 3 and 4 when the divorce began. Primary residential status in the state of Washington is equivalent to full custody. My former wife was granted weekend visitation on every other weekend plus holiday visitation and alternate two-week visitation periods during the summers.
I am now 49 years old and this had been my first and only marriage. I am an attorney although I do not practice law now but rather write and I am active in business. My former wife, who had been married before, is now 39. Those were the only children ever born to either of us. Both children are loved dearly by both parents. The children live with me as a single parent-father and attend kindergarten and the first grade in the small town of 2,000 people where I live. My former wife lives approximately 150 miles away. During the exchange of the children we each drive halfway and meet at midpoints between the two towns, depending on whether it is winter or summer and whether we are able to drive over certain mountain passes due to snow.
My thoughts here deal not so much with the particulars of our case as they do with how to handle a false sexual abuse allegation raised in the midst of a bitter divorce by a spouse who wants full custody of minor children and sees this tactic as the best means for reaching that goal. It is inconceivable to me that matrimonial lawyers and the family court system have allowed this issue of sexual abuse to advance as far as it has so that an accusation alone, often with no evidentiary hearing of any sort, immediately produces court-ordered denial of visitation or access to the parent accused. Then the accused parent faces months of agony and confusing, frustrating efforts just to see the children, and drawn out, convoluted procedures to get some final disposition.
Why are there so many false allegations? The answer is quite simple. Since most falsely accused persons cannot fight the accusation, all the reinforcements are delivered as soon as accusations are made. the hated spouse is severely punished. Possession of children is secured. There is free legal advice, welfare assistance, and emotional support from affirming professionals, friends, and family. After all, the Gulag existed for years in Soviet Russia and how many of those prison inmates were ever guilty of anything? Most were totally innocent. In child abuse, it is the same. There is such a Gulag built up in our child abuse system that bodies need to be found and if you run out of real criminals, then a false allegation will suffice. This is an empire-building opportunity for many people in the system who have about as much incentive for finding non-abuse as a dentist has for finding no cavities.
I believe what needs to be done is a voice must rise up and say it is not enough to claim to do good. Truth is also essential. And if you violate truth while trying to do good, you have not done good at all. If child abuse occurs, it should be stopped. But sentencing a person to a longer term in prison for "touching" a child than that person would get for murdering someone is ridiculous. It has opened the door to false plea bargaining where innocent people are being forced to plea bargain left and right to nonexistent crimes for fear of getting 150 years in prison if they do not plea bargain.
One of Stalin's closest advisors pled guilty in the show trials of Soviet Russia. He said "Yes, I am guilty." And the prosecutor asked him for the record, "And what is it you are guilty of?" The accused turned to the do-gooder next to him and said, "What is it I am guilty of?", and learned that it was Section 54 of Code 394 on page 18 the book of records. Everyone was happy and the accused was shuffled off to the Gulag so he could help to build the canals from Finland to Soviet Russia. It was bodies that were needed to stock the Gulag, it was not a question really of crimes or criminals. It was a question of bodies. Only today it is the falsely accused child abuser who pays the price and the child who is deprived of a parent who pays the price demanded by the maintenance of the system.
Most of the divorce-related false sexual abuse allegations could be quickly resolved if the simply requirements of videotaping all therapy sessions of the children were in place. Some matrimonial lawyers have a standard motion that they make whenever their client is involved in a divorce with small children and when they represent the father. The motion says in effect:
The minor children of the parties to this divorce may not be taken to any therapist, psychologist, psychiatrist, social worker, counselor or other mental health professional without (a) prior notice to the court (b) prior notice to all parties to this divorce (c) all sessions with such mental health professionals being videotaped from start to finish with the non-taking party paying the costs of such videotaping if necessary.
This type of motion would drastically cut down on the fabricated allegations of sexual abuse that are raised in the environment of a divorce and custody conflict. I believe the law should require that all sessions with children in which the issues of sexual abuse are raised should be videotaped from start to finish. The video camera should be standard office equipment before anyone could enter into any counseling or therapy of minor children. If the therapists, counselors, or mental health professionals cannot afford a video camera, they should not be in the therapy business when it may involve a forensic setting and contact with the legal system.
When one is accused of sexual abusing a child, the effort to meet this accusation and overcome it is monumental. It can be compared to having HIV antibodies. Until convicted, or until you lose your children, you do not have full-blown AIDS, but you have HIV just by the accusation. Once you are accused of sexual abuse your life, like Magic Johnson's, will never be the same. If you are successful in meeting the attack on you, you may survive and you many even gain custody of your children, but you will never be the same. The accusation itself will never leave you. The accusation requires you to marshal all your mental, financial, emotional support, and energy resources to overcome it. You have to commit everything to fighting the allegation or the allegation will eventually kill you, in one form or another. You must be clear that this is total warfare. Half-hearted efforts will not prevail.
My first surprise was how easily therapists can label someone a child abuser. Suppose you went into a lawyer's office and said, "I have a business dispute with Joe. Joe smokes dope. He cheats on his wife. He is an ex-felon. He dresses in female clothes. He makes obscene phone calls at night to strangers." Do you think your lawyer would take your word for this? Do you think your lawyer would write a letter to state authorities stating, "Joe smokes dope, cheats on his wife, is an ex-felon, dresses in female clothes and makes obscene phone calls at night?" Absolutely not. Any lawyer who did this would soon be out of business. He would be sued by Joe's lawyer, lose, and no longer able to get malpractice insurance. But in the therapy profession, this type of nonsense seems to go on with regularity. A spouse comes to a therapist, accuses the other spouse of being a bum or a rat and of molesting the small children, and the therapist writes up a report for the court stating almost verbatim what the complaining spouse has just said.
Therapists who never see the father, never interview the father, never see the father with the children, or never interview anyone who has seen the father with the children, will still write reports for the court stating that the father is a "child abuser" and should not be given custody. They may also recommend that there be no visitation or that any visitation be limited to supervised contacts. Often these reports will include slanderous material about the father which came directly from the mother. That was probably the biggest surprise of my divorce -- that a therapist would put such allegations on paper without having interviewed anyone except those persons friendly to the mother.
I suggest the solution to this is to file malpractice lawsuits against such therapists and to have states remove the immunity laws protecting such slander in the name of protecting children and "doing good." Depriving children of their father is not "doing good" if the allegation is false. There is no reason any social worker, therapist, or mental health professional should be immune from suit for malpractice any more than a dentist, physician, or attorney. Opening the doors to malpractice lawsuits and requiring all child interviewing sessions involving sexual abuse allegations to be videotaped would greatly cut down on the number of false allegations.
I also suggest filing formal complaints with the appropriate state regulatory boards and the appropriate professional associations against therapists who act contrary to ethical codes and professional standards. Each state has a regulatory board for psychiatrists and psychologists. Most have similar boards for social workers and some have laws licensing other kinds of professionals as well. Each state will have professional associations and there are national professional associations as well. Get the ethical codes and professional standards from each group and examine them in light of your experience.
My case involved three therapists hired and paid for by my former wife, two social workers, two guardians ad litem, a court-appointed child psychiatrist, a court-appointed adult-child psychiatrist, and an evaluation team of husband and wife who evaluate people for sexual deviancy. I tried to cooperate so I went the whole gamut. Polygraph exams. Penile erection exams. MMPI. Sexual deviancy tests. Etc., etc., etc. Cooperating with child protection and satisfying the demands and requirements of the various professionals in this area is a complex and lengthy procedure. The simple thing, for them to videotape all sessions with the children so others can determine if the children are really saying what appears in the reports, just does not happen. If this procedure were followed such cases could probably be resolved fairly quickly. In contrast, my case from start to finish took 26 months. It should have been over in four, and that includes all the financial matters of the divorce.
It would have been far better for the children if such had been the case. The research evidence supports the view that the most difficult and damaging factor in a sexual abuse allegation is the length of time between an allegation and the final adjudication of the matter. For the most part the lengthy delays are caused by the child protection and legal system rather than the parents.
The notes of the therapists are absolutely essential for an accused parent to attempt an effective response to an allegation. We obtained the notes of both therapists and the social workers. When the time for trial came, it was these notes and our pretrial depositions which exposed this farce for what it was. Competency does not appear to be a requirement for licensing in the therapy profession. Prior to my introduction to this world of Orwell, I thought that competent investigations were actually made and competent persons were in charge of such investigations. What I found reminded me of the story of the man in the Gulag who approached the prison warden stating, "I have been convicted of nothing, I am just a suspect, I had no trial, there was no evidence, I am simply suspected of being anti-Soviet." The warden turned to the man and said, "No, son, you have it all wrong. If you are in the Gulag you are guilty. It is the people walking around free on the streets who are suspects." In the child abuse system, those accused often are considered by the therapists as the "guilty" ones and those not yet accused are the "suspects."
My advice to someone who is falsely accused of child sexual abuse is:
In my case, my wife's attorney hired a therapist and left these incriminating words on the telephone message taken by the secretary: "Keep interview with child confidential unless abuse can be found." This is an open invitation for the therapist to find abuse. Some therapists may find what is wanted for a variety of reasons, including financial gain, future referrals, or a belief that sexual abuse is rampant and probably happened in this case, regardless of what the child may say. Therefore, the issue is not whether the child is lying, it is whether the therapist is being deceptive, or telling half truths, or drawing unjustified conclusions. Be very suspicious of a therapist who resists taping the therapy sessions.
However, the therapists retained by my former wife reached opposite conclusions without having interviewed me or anyone associated with me. As far as the state social workers were concerned they were even less reliable than the therapists. One social worker concluded that abuse was going on after a 10-minute interview with the children. In court, this social worker, who had a degree in political science, admitted that he had only seen one child and only for 10 minutes in his entire lifetime. Yet he was able to reach a conclusion with regard to abuse in a single 10-minute session. Another social worker took 30 minutes, part of the time spent with the child on the mother's lap.
When the case eventually reached court, the opinions of the therapists and the social workers were given virtually no weight by the trial court judge due to their non-credible testimony and methods of operation and diagnosis. The conclusions of medically educated persons, including two psychiatrists, were carefully considered by the court and given more weight in the court's final determination. Therefore avoid social workers and therapists and find intelligent physicians and clinical psychologists whose opinions will be respected by the court. If you search out therapists then search for those who are qualified and will come into court with a well-defined protocol and without any historical bias clearly favoring one side or the other in dissolution actions. If the interviews with our children by the social workers and the therapists had been videotaped for the court to review, the testimony of these persons would probably have received even less weight than it did. Have your own experts videotape their sessions with your children. That way the court will be able to see the child say "No" when asked if the parent does "bad touching" without having to interview the child directly, which most judges will not do.
Reprinted with permission of the author from Volume 4, Number 1 of Issues in Child Abuse Accusations
Email to the Editor