In a society in which sensitivity to abuse is heightened and there is a demonstrable demand that such horrific claims be taken at face value, how do we effectively safeguard children against the implications of false allegations of child abuse?
By Rachel Elovitz, Family Lawyer
(Continued from Part 1).
Allegations of Child Abuse: Smith v. Pearce
Jump forward a few years to November of 2012, when J. Pearce filed an action to legitimate and seek joint custody of his son, T.C.F. (born in 2010). Smith v. Pearce, 334 Ga. App. 84, 84–94, 778 S.E.2d 248, 250–56 (2015). Just days before filing, after learning that Smith was still involved with her ex-husband (“Fahey”), Pearce vacated the townhome in which he was residing with Smith and T.C.F. Pearce, who intended to and did maintain the lease on the townhome for Smith and T.C.F. until it expired, rented a separate apartment for himself, setting up a room for T.C.F.7 Id.
A couple of days after Pearce filed his petition, Smith vacated the townhome and relocated with the minor child to an undisclosed location. Id. A few weeks later, Smith remarried her ex-husband (about which Pearce learned from social media). Id. A few months into the pendency of the case, Smith filed a motion to dismiss by special appearance based on a claim of insufficient service of process, which was denied.8 Contemporaneously, Smith filed a substantive affidavit, claiming that Pearce raped her and that T.C.F. made an outcry of sexual abuse against him. Smith’s motion to dismiss was denied, as was a motion to intervene and a motion to dismiss filed by Fahey, claiming that T.C.F. was his legal child, having been born during Fahey’s first marriage to Smith. Id.
What Fahey omitted from his motions to intervene and dismiss was that at the conclusion of his divorce from Smith, the Circuit Court of Santa Rosa County, Florida entered a decree finding that T.C.F. was not, to which the parties stipulated, Fahey’s son. Fahey was not awarded any visitation and was not ordered to pay child support. Id. It was during the pendency of Smith and Fahey’s divorce that Smith (who made allegations of physical abuse against Fahey) suggested to Pearce that T.C.F. was his son, a suggestion confirmed by genetic testing. Out of concern for Smith and T.C.F., and because he wanted to be a parent to T.C.F., Pearce immediately took Smith and T.C.F. into his home, heart, and life.
The evidence regarding the alleged abuse was that in October 2012, when Pearce and Smith were cohabitating, Smith told Pearce that she was going to spend the weekend with college friends, when she was actually planning to attend (and did attend) a military ball with Fahey. Pearce took care of T.C.F. in Smith’s absence, as he had on numerous other occasions when Smith was “visiting friends.” Id. According to Smith, when she returned from her trip, T.C.F. (not yet two years old), told her that “Dada kissed pee-pee.” Id. Smith claimed that she immediately confronted Pearce (which Pearce testified never happened) and that he failed to assuage her concerns.
Her purported concerns not dispelled, did Smith call the police? No. Did she make a CPS report? No. Did she immediately bring T.C.F. to the pediatrician, a hospital, a child psychologist, or a forensic evaluator? No. Did she share her concerns with her parents, her fiancé – with anyone? No, not until eight months later, during the pendency of the litigation with Pearce. In fact, after the alleged outcry, Smith continued to share the same bed with Pearce and to leave T.C.F. alone with him. Id.
At trial, the evidence was that in late November 2012, Smith responded to a text from Pearce acknowledging that it is “important for [him] to be in [T.C.F.’s] life regularly.” Id. It was not until Smith learned in early December 2012, that Pearce had retained counsel that Smith emailed Pearce advising that he would no longer be permitted contact with her or T.C.F. Smith then, absent any notice to Pearce, withdrew T.C.F. from preschool, quit her job, left Atlanta, and remarried Fahey. Id.
For the next 18 months, Pearce searched for Smith and T.C.F. He sent Smith emails and text messages asking about T.C.F., but Smith did not respond. Pearce went to DFCS seeking assistance, but absent evidence of dependency, they were unable to help. Pearce tried calling the police, but since he was not yet T.C.F.’s legal or physical custodian, and since he had no knowledge of whether the child was being mistreated (other than being kept from his father), the police also were unable to help. Pearce hired private investigators and special process servers in an effort to find and serve Smith (in four states), and ultimately he was permitted to serve by publication, the Court finding that Smith was evading service. Id.
In April 2013, Smith, Fahey, and T.C.F. moved to Florida. It was there that Smith reported T.C.F.’s alleged molestation outcry to a family therapist, who found nothing to substantiate the molestation allegations, but who nonetheless, being a mandatory reporter, contacted Florida’s Child Protective Services (“CPS”). CPS contacted DFCS, and both conducted independent investigations, neither of which was substantiated. Id.
In January 2014, Pearce married a woman and adopted her daughter. The trial court found that the family lived in a comfortable home, that Pearce had a stable job, and that both he and his wife wanted T.C.F. to join their family. Id.
In February 2014, the case went to trial – which trial took four days over the course of seven months. Id. During those seven months, the trial court entered interim orders permitting Pearce to have contact with T.C.F. through Skype and Facetime and for supervised visitation in Virginia (to where Smith and Fahey had at that time relocated with T.C.F.) at Pearce’s sole expense. Id. During their first Facetime, T.C.F. immediately recognized Pearce, but while he seemed happy to see and speak with him, T.C.F. repeatedly told his father, “You’re shit.” Id. The testimony at trial was that Smith and Fahey tried to usurp Pearce’s Facetime with T.C.F. by terminating the communications early. Id. They would also try to thwart Pearce’s visits with T.C.F. in Virginia by sending him to the visits exhausted and hungry. Id. They also told T.C.F. that Pearce was going to take him away from them – or have the police do so, and they made him uncomfortable around Mrs. Pearce (his stepmother) by telling him that he was not allowed to hug her. Id.
In April 2014, prior to being allowed any in-person visits with T.C.F., Pearce submitted to court-ordered psychological and psychosexual evaluations. The trial court had denied Smith’s 11th-hour motion requesting those evaluations – after which Smith filed a renewed motion which was also denied. However, after being denied access to his son for 18 months, Pearce agreed at a Judicially Hosted Settlement Conference to submit to the psychosexual and psychological evaluations, the lion’s share of which was at his expense.
Neither the psychosexual evaluator nor the psychologist found anything that supported Smith’s claims that Pearce had abused T.C.F. Id. The psychosexual evaluator in particular determined that there was no evidence that Pearce was sexually interested in children or had molested T.C.F., and the psychologist found Pearce to be a “well-functioning individual” with no clinical disorders and “many characteristics that are likely to produce positive parenting, including his intellect, his ability to earn an income and provide stability, his obvious concern and caring for his son, and his desire to be a parent.” Id. Smith nonetheless testified that she had lingering concerns about T.C.F. being alone with Pearce. Id. In fact, during the seven-month period in which the case was tried, Smith enlisted other criminal and social service agencies to investigate the purported November 2012, molestation claim and testified about her plans to take T.C.F. to a hospital that specializes in assessing sexual abuse in young children.
In Judge Lane’s Final Order on Legitimation, she granted the legitimation and granted Pearce’s request that T.C.F. be given Pearce’s surname (over Smith’s objection). The trial court “stopped short of declaring that Smith had fabricated the rape and molestation allegations, but found her “two-year crusade” about the alleged molestation to be “disturbing.” The trial court found further that Smith used Pearce when it was convenient and then pushed him away with a “lack of appreciation for the seriousness of [her actions] and the amount of pain she had caused [him].” The trial court found that if Smith remained the physical custodian, Pearce would likely “never be allowed to bond with and parent the child with all he has to give and the child [would] suffer tremendously from such a loss.” The trial court granted Smith and Fahey joint legal custody and Pearce physical custody of T.C.F., with Smith being granted visitation. Various post-judgment motions and an appeal followed. In short, the trial court’s grant of legitimation and custody to Pearce was upheld, as was the trial court’s denial of Smith’s motions to dismiss, motion for new trial, motion to set aside, and ultimately, an award of fees and expenses under O.C.G.A. § 9-15-14. Id.
As the Supreme Court opined, “This was a bitter, protracted custody battle in which the parties presented sharply divergent accounts of the events.” Id. The Court acknowledged the “Solomonic task of making custody decisions,” which “lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” Id., citing Bankston v. Warbington, 332 Ga.App. 29, 29–30, 771 S.E.2d 726 (2015). In citing to the King case, supra, and Arthur v. Arthur, 293 Ga. 63, 64(1), 743 S.E.2d 420 (2013,) the Supreme Court reiterated that it “will not disturb the Superior Court’s exercise of discretion if there is any evidence to support [it], and the record, the Supreme Court held, “shows that the [trial] court’s ruling in this case was supported by evidence….” Id.
As a family law practitioner, what is so troubling is the lengths to which a good and loving father had to go in order to see his son. Smith did not contest that Pearce met the first prong of his legal burden in seeking legitimation (that he had not abandoned his opportunity interest). However, Smith did claim that Pearce failed to meet the second prong of his legal burden in seeking to legitimate T.C.F., specifically she denied that it was in T.C.F.’s best interest that the legitimation be granted. Because she contested that second prong, Pearce’s requests for an emergency hearing were ignored, as he was not yet a legal father entitled to request even a temporary award of visitation or custody. Had he not ultimately and voluntarily submitted to the psychosexual and psychological evaluations, who knows how much longer he and T.C.F. would have gone without contact?
What if Pearce didn’t have the financial ability to pay for the cost of the psychosexual and psychological evaluations? What about those fathers (and mothers) who are falsely, sometimes wittingly, accused of sexual child abuse who cannot afford evaluations? What about those who cannot afford representation – or those whose attorneys are not willing to stay in the case for years when the client is unable to pay or to continue paying for representation when the other side takes unreasonable positions that delay a final resolution of the case? What about those who cannot afford to respond to post-judgment motions and multiple appeals? Putting aside the unthinkable suffering of the parent wrongfully accused and deprived of access to his or her child, what about the child who for no good reason loses a loving relationship with a capable parent?
Allegations of Child Abuse in Custody Litigation
So what do we really know about the frequency with which allegations of child abuse are made in custody litigation, the percentage of time they are valid (or not), and what the impact is of such allegations on the victims? We know that twenty-five to fifty percent (25-50%) of disputed custody cases involve domestic violence9 and that when children are exposed to domestic violence they can show levels of emotional and behavioral problems comparable to children who are the direct victims of physical or sexual abuse.10 We know that children who witness domestic violence experience adverse effects that include aggressive behavior, depression, and/or cognitive deficiencies11 and that according to the Centers for Disease Control, there is a significant relationship between exposure to “adverse childhood experiences” (including witnessing domestic violence) and the development of certain medical problems in adulthood, including cardiac and pulmonary disease, obesity, diabetes, depression, alcoholism, IV drug use, sexually transmitted diseases, and hepatitis.12
According to an almost 30-year-old study, child sexual abuse allegations in custody cases are rare (about 6%), 2/3 of which are substantiated – and 1/3 of which are false.13 The remoteness of that study notwithstanding, we know that there are a plethora of legal actions that can involve issues of custody and/or visitation, e.g. legitimation, divorce, dependency, grandparent visitation, third party custody actions, modifications of original custody actions by former spouses, even contempt can involve issues of custody or visitation – but bringing these legal actions does not mean the issue of abuse will be litigated (if, for example, it is raised after the action is filed but determined to be unfounded by the police or unsubstantiated by DFCS before the issue can be heard, or if the case is dismissed before being tried, or if the case is resolved by consent without any finding by the Court as to whether the allegations were credible). In fact, according to a 2012 report, “40% of cases involving sexual abuse accusations were divorce and custody cases, and in three-fourths of these cases, there was no determination of abuse by the legal system.”14
With the abrogation of the tender years doctrine, the absence of a presumption in favor of either a mother or father as a child’s primary custodian, and greater consideration in recent years for joint custody, parents uninterested in their children having equal access to both parents are more primed than ever to get a leg up in custody cases. Similarly, when joint custody is granted, and when one parent is unhappy with that decision, false allegations present an unfortunate means of manipulating the court into modifying that arrangement, one that victimizes both the child (by interfering with his or her relationship with a loving and competent parent) and the accused parent (who often finds himself or herself in the position of having to prove a negative in not just the custody case, but in any contemporaneous DFCS investigation and criminal action).15
Decades ago, a 1991 study “attempted to determine the incidence and validity of sexual abuse allegations” in custody and other proceedings “through telephone interviews and mail surveys [to] 290 court administrators, judges, custody mediators, and child protection workers throughout the United States.”16 These researchers “conducted 70 in-depth interviews at five sites, and then … tracked cases of sexual abuse allegations over a 6-month period from 11 court systems.”17 “This … yielded a pool of 160 cases of sexual abuse allegations” with estimates on the occurrence of false abuse claims ranging from 20% to 80%.18
Once the allegation of child abuse is made in custody litigation, immediate action is generally taken to protect the child from the purported abuse. This might be in the form of a visit from Child Protective Services, an investigation by the Department of Family and Children Services, forensic interviews of the child, inquiries by other state agencies (e.g., NCIS) and the entry of ex-parte and emergency Orders. These actions can result in the alleged child victim being removed from the care of the accused parent or having that time restricted or supervised, pending a determination of the validity of the abuse claim. In the interim, psychological and/or psychosexual evaluations may be performed, and the child may undergo repeated questioning by caseworkers, therapists, police investigators, child advocates, GAL’s, even (however inappropriate) the accusing parent. If the findings are inconsistent, a judge may decide to err on the side of caution, permanently suspending or restricting visitation, allowing for further alienation of the child from a wrongfully accused parent.19 At this point, the relationship between the child and the accused parent is already strained,20 perhaps irrevocably damaged, because a self-serving, vengeful parent exaggerated or fabricated abusive events that might even be buttressed by a child who, after years of exposure to alienating behaviors, has aligned with the vilifying parent.21 Disconcertingly, “the process of evaluating an accusation may result in more damage to the interests of the child and to the child’s primary relationships than the [false] act in question.”22
False Allegations of Child Abuse: Deterrents
In a society in which sensitivity to abuse is heightened and there is a demonstrable demand that such horrific claims be taken at face value, how do we effectively safeguard children against the implications of false claims? As a deterrent, twenty-nine (29) states in the US have codified laws that permit civil or criminal penalties to be imposed on persons who intentionally make false reports of child abuse.23 Nineteen (19) states (including Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, and Wyoming) authorize misdemeanor penalties, which generally means fines of no more than $2,500.00 and jail time of not more than a year.24 In other words, in these states, a parent who acts to destroy an otherwise loving and healthy parent-child relationship, and/or another parent’s reputation and career, and/or seeks to take away that parent’s freedom at the psychological and financial expense of the child at issue, faces the same penalty as one charged with underage drinking or possession of marijuana.25
In a few states (e.g., Florida, Tennessee, and Texas) false reporting of child abuse is a felony, and in others (e.g., Arkansas, Illinois, Indiana, Missouri, and Virginia), a second or subsequent offense may be elevated to a felony.26 New York, Ohio, Pennsylvania, and the Virgin Islands, criminalize false reporting of child maltreatment, and in California and West Virginia, actions for money damages are authorized – equal to the costs incurred by a falsely accused parent defending against a wrongful child abuse claim.27
In Georgia, codified law in this area has a single-edged sword. OCGA § 19-7-5 (h) expressly states that “Any person or official required by [that Code section] to report a suspected case of child abuse who knowingly and willfully fails to do so [is] guilty of a misdemeanor.” However, the same Code section provides no penalty, whatsoever, for the false reporting of child abuse. Interestingly, subsection (a) indicates that the purpose of OCGA § 19-7-5 is “to provide for the protection of children” inasmuch as “mandatory reporting will cause the protective services of the state to be brought to bear on the situation in an effort to prevent abuses, to protect and enhance the welfare of children, and to preserve family life wherever possible.” If that is truly the intent, and if the statute is to be liberally construed toward that end, then it begs the question of why it omits any reference to or penalty for false allegations of abuse.
Under the Georgia Code, O.C.G.A. § 15-11-2(2)(B), “abuse” includes “emotional abuse.” It cannot credibly be said that using false claims of child abuse to sever a healthy and loving parent-child relationship out of vengeance or malice is not emotional abuse. It is time for Georgia’s legislature to recognize that false claims of abuse are themselves child abuse and to ensure that the protective services of the state be brought to bear to prevent it, like all other forms of child abuse.
This article is a call to action addressed to the legal community and the General Assembly.
7 During the period (just under a year) that Pearce and Smith had resided together, Pearce had financially supported T.C.F., paying half the cost of his private daycare/school, and being solely responsible for the cost of the parties’ monthly household expenses.
8 Smith later filed a “renewed” Motion to Dismiss based on a lack of jurisdiction claim, which was also denied. Smith also filed a Motion for a Paternity Test, claiming the one to which Pearce had already voluntarily submitted was a “drug store test” and unreliable (even though the divorce decree entered by the Circuit Court in the Smith-Fahey divorce found that according to genetic testing, Fahey was not T.C.F.’s father, and Pearce was). Further paternity testing buttressed that Pearce was T.C.F.’s biological father.
9 See www.americanbar.org, citing S.L. Keilitz, National Center for State Courts, Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers (1997); J.R. Johnston, High-Conflict Divorce, 4 Future of Children 165 (1994).
10 Id., citing Jaffe, Wolfe & Wilson, Children of Battered Women (1990).
11 Id., citing Morrill, Dai, Dunn, Sung & Smith, Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother, 11(8) Violence Against Women 1076-1107 (2005); Jeffrey L. Edleson, 2 Problems Associated with Children’s Witnessing of Domestic Violence, (1999), available at
http://www.vawnet.org/DomesticViolence/Research/VAWnetDocs/AR_witness.php.
12 Id., citing http://www.acestudy.org/; http://www.cdc.gov/od/oc/media/pressrel/r980514.htm
13 Id., citing http://www.acestudy.org/; http://www.cdc.gov/od/oc/media/pressrel/r980514.htm
14 Kerns, Robert W. Jr., The Use of False Accusations of Abuse to Influence Child Custodianship and a Proposal to Protect the Innocent, South Texas Law Review (July 2015), located at https://works.bepress.com/robert_kerns/1/ citing Sexual Abuse Allegations in the Context of High Conflict Divorce, TECHNICAL ADVISORY SERV. FOR ATT’YS, www.tasanet.com/knowledgeCenterDetails.aspx?docTypeID=1&docCatID=15&docID=403 (last visited Apr. 8, 2015) (first emphasis added).
16 Id., citing Hollida Wakefield & Ralph Underwager, Sexual Abuse Allegations in Divorce and Custody Disputes, 9 BEHAV. SCI. & L. 451, 452 (1991).
17 Id., citing Wakefield & Underwager, supra note 15, at 452 (citing Thoennes & Pearson, supra note.
19 Id., citing Michael G. Brock, False Allegations of Sexual Abuse: What Can Be Done, TRUTH IN JUSTICE, http://truthinjustice.org/false-allegations.htm (last visited Apr. 8, 2015).
20 Id., citing Deborah H. Patterson, Note, The Other Victim: The Falsely Accused Parent in a Sexual Abuse Custody Case, 30 J. FAM. L. 919, 925 (1992).
21 Id., citing Richard A. Gardner, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse 86, 90 (Creative Therapeutics 1987).
22 Id., citing Wakefield & Underwager, supra note 3, at 451.
23 Id., citing Child Welfare Information Gateway, Penalties for Failure to Report and False Reporting of Child Abuse and Neglect, U.S. DEP’T HEALTH & HUM. RES., CHILDREN’S BUREAU 2 (2014), www.childwelfare.gov/pubPDFs/report.pdf.
25 Id., citing See Student Legal Servs., Surviving a Misdemeanor Charge, U. ARIZ., http://legal.asua.arizona.edu/misdemeanor.html (last visited Apr. 8, 2015).
26 Id., citing Penalties for Failure to Report and False Reporting of Child Abuse and Neglect, supra, at 2; see also FLA. STAT. ANN. § 39.205(9) (West Supp. 2015); TENN. CODE ANN. § 37- 1-413 (2010); TEX. FAM. CODE ANN. § 261.107(a) (West 2014); ARK. CODE ANN. § 12-18-203(b)(2) (2009); 325 ILL. COMP. STAT. ANN. 5/4 (West 2008 & Supp. 2014); IND. CODE ANN. § 31-33-22-3(a) (West 2008); MO. ANN. STAT. § 210.165.3 (West 2012); VA. CODE ANN. § 63.2-1513(A) (2012).
27 Id., citing 110. CAL. FAM. CODE § 3027.1(a) (West 2004); W. VA. CODE ANN. § 48-9-209(d) (LexisNexis 2009) (citation omitted).
Rachel A. Elovitz is a founding partner of Elovitz/O’Nan LLC in Atlanta, Georgia, where she has been practicing family law for almost 23 years. She also serves as a guardian ad litem, representing the best interest of children in custody cases, and as a child advocate in dependency cases (abuse and neglect). www.eofamilylaw.com
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