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Denver Custody: False Allegations of Abuse and Violence (Part 2)

right-or-wrong-1160031By Stephen J. Plog

In Part 1 of this article, I discussed the basic concept of false allegations of abuse or violence being raise in Colorado custody cases.   This included delving into some of the case specific and systemic consequences or results flowing from people making false allegations.  I also touched on the damage these types of allegations can have on children and their bonds with the accused parents.   Finally, I touched on the fact that false allegations are something that sometimes take time to deal with and, depending on the specific allegations, may require a certain amount of patience.   With years of practicing as a Denver custody attorney under my belt, I have seen enough situations to have formulated the belief that justice has a way of working things out and exposing the lies, in the end.  However, exposing lies and false allegations doesn’t just happen by chance.  In reality, it takes skill, experience, a methodical approach to ultimately refuting those allegations.

In a general sense, the burden of proof regarding false allegations will fall upon the person making them, meaning courts generally adhere to the notion that the person raising an allegation of abuse or violence had better be able to back them up.     Though the accuser may bear that burden to build his or her case up, I am firm believer in the accused taking affirmative, proactive steps to build a case for refuting those allegations.    In reality, some allegations, such as those of a sexual abuse of a child, can lead a court to take a better-safe-than-sorry approach from the onset.  No judge wants to be responsible for allowing potentially dangerous contact.   As such, they may put protections in place, initially, which have the wrongly accused feeling like he or she is already damned in the eyes of the court.   As an empathic person, I wholly understand why they would feel this way.   As a professional, I know that things will need to take their course and that ultimately those false allegations can be undone and turned around.   As indicated in Part 1, it can truly be an exercise in patience.    Between drafting Parts 1 and 2, I came across an article in which it took a man wrongly accused of child abuse over 20 years before the system acknowledged he had one nothing wrong.    This was an extreme case which ended in his parental rights being terminated, but exemplifies the tragic outcome and effect that false allegations can have on a custody case and a parent’s relationship with their children.  Below, I will start discussing how to deal with various allegations and the process people may be faced with.

1.     If there are criminal charges involved or allegations that could lead to criminal charges, I believe it’s important to have a criminal lawyer on hand, or at least on standby, who can be ready to jump in to advise and advocate when dealing with police, governmental agencies, etc.   It is very common in some cases for us to work in tandem with a criminal attorney.  It is also common for someone to come to us after a criminal investigation has begun or charges have been filed.    When there are criminal charges looming, the accused has an an absolute right to remain silent and against self incrimination.   9 out of 10 times, the criminal attorney we work with will immediately advise that our client say absolutely nothing for the time being.   The concern is that one wrong word or statement can give the prosecutor fuel to use in trying to gain a conviction.   Thus, it’s important to have the guidance, from a criminal law perspective, of what to say or not say.

Criminal charges can arise for various reasons.  A common allegation is of domestic violence.  Oftentimes, with these allegations there may be little or no evidence other than he-said/she-said statements.   As such, it’s important to choose and use words carefully.   Though an allegation of domestic violence against one parent can be serious as might relate to a restraining order, it won’t automatically be damning as relates to time with the children, unless the allegation is that the violence occurred in front of them.    A finding of domestic violence can have an impact when it comes time for the court to allocate parental responsibilities tied into joint decision-making.

On the further end of the spectrum, there may be a criminal investigation tied into child abuse, whether physical or sexual, or both.   These are the most gut wrenching cases which need to be handled with great care.    When an allegation of sexual abuse is raised, the initial reaction of the “system” may be a complete cessation of parenting time or contact until the issues are sorted out.   Generally all it takes is one parent mentioning sexual abuse or child abuse to a teacher, counselor, coach, or friend, and a call will be made to authorities, whether law enforcement or a social services agency.   Most of these people are statutory mandatory reporters, who are required to report allegations.  Many accusers know this and readily make allegations to these types of people who might be in a child’s life.   They often make the allegation themselves, as opposed to the child raising the concern.  Why?  Because in instances of false allegations, they know the child will not state what they want them to.   Once the allegation of abuse, particularly sexual, is raised there will be contact from police or a social worker.   At this point, the urge to tell your side of the story will emerge.   Beyond a general denial, the accused should remain silent, even indicating they need to consult with an attorney.

Having a criminal attorney does not make you look guilty.  It makes you look like you are taking the allegations seriously and approaching things in an intelligent manner.   With allegations of sexual abuse, there will almost always be a forensic interview of the child. The interview will generally be with a trained professional, or professionals, who know how to objectively gather information from the child.   That investigation can lead to a result of the allegations being unfounded, inconclusive, or founded.  If unfounded or inconclusive, the investigation should stop and any criminal investigation will likely end.   If founded, criminal charges will likely follow and, at that point, any custody or visitation litigation will generally need to be put on hold until the criminal matter concludes.    Colorado family law judges are generally understanding of the position the accused is in and may be willing to delay final conclusion of custody proceedings until the criminal case is resolved.

If the allegations of physical or sexual abuse of the child are determined to be unfounded, the accused can use those findings to demonstrate to the custody court that there is no safety issue.  If the allegations came from the other parent, as opposed to the child, the finding of no harm can potentially be used to show the court that that parent lacks the ability to value the parent-child relationship, which is a big factor when it comes time to allocating parenting time and decision-making.  In essence, false allegations can potentially be turned around and used against the accuser, depending on the circumstances in the specific case.

2.     Not all allegations rise to the level of a criminal or human services investigation.   Even in cases which do not, it will be important to refute them.   Though a governmental agency may not have the evidence it needs to proceed, let’s say under a “beyond a reasonable doubt” standard, there may still be enough evidence such that the parent raising the false allegations can still convince a court, from a “preponderance of the evidence” standpoint, that there is a problem.   In these instances, I recommend swiftly obtaining the services of a child custody professional to looking into all aspects of the case, including the allegations.

Specifically, I would recommend obtaining a Child and Family Investigator, or even better, a Parental Responsibilities Evaluation.   As indicated in prior writings, these are neutral, court appointed professionals who will assess all relevant aspects of the custody case, including investigating any false allegations of abuse or domestic violence.   Any investigation will include talking with both parents, listening to their concerns, talking to the child, and even seeing the parents, including the accused interact with the child.  With a CFI or PRE, it’s important to get the allegations to the forefront so they can be thoroughly looked into.     People who raise false allegations often have a pattern of repeated allegations.   They often go down the road of throwing as much as they can out there to see what sticks.  A CFI or PRE can be effective in that they can piece together all of these allegations in a concise package for the court to review.   Their conclusions and opinions can hold great weight and most of these professionals are sensitive to the notion that people make false claims to gain the upper hand in a custody battle.    With a PRE, there will also generally be psychological testing, which may further aid in disproving allegations of abuse, whether domestic violence or child abuse.  Your custody attorney will guide you on how to navigate this type of investigation, including as relates to providing information, interacting with the professional, etc.  It is quite common for false allegations to be dispensed with through this process and, once officially refuted, the accuser will have a verified negative mark against him or her which can be used as a deterrent or shield when the next false allegation arises.

In cases of sexual abuse, it may become necessary for a private sexual abuse evaluation to be requested.    This will be done by a professional specializing in sexual abuse allegations whose sole job is to get to the truth.   The process will include interviewing the kids.   Again, allegations of this type often come from the parent, who reports “the child said….”   Sometimes, parents can even manipulate children to say catch phrases or bits and pieces of things causing suspicion.    Trained professionals should weigh through the allegation chatter to get to the core of what’s going on.

When starting Part 1, and Part 2, of this article, I did not anticipate the volume of things I had to say about false allegations tied into custody cases.   As one who does not want to sacrifice content for the sake of brevity, I am going to stop here and state that there will be a Part 3 to this article.    In Part 3, I will continue to look into how to handle false allegations in the legal arena.   This will include providing steps clients might take to help collect and gather information, including from the accuser, which may be helpful in shutting them down, whether long term or right out of the gate.    For now, if you find yourself in the position of being on the wrong end of a false allegation tied into your child, contact a Denver custody attorney ASAP to start the process of turning things around, clearing your name, and moving the process in the right as relates to time with your child.   Being proactive now might prevent something small from turning into something much bigger and more difficult to deal with down the road.

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