J’ACCUSE! The incidence, effect, and treatment of false allegations of child abuse in custody litigation.
By Rachel Elovitz, Family Lawyer
Allegations of child abuse in custody litigation have occurred with increased frequency in recent decades. The prevalence of false allegations of child abuse has similarly increased, destroying otherwise healthy and loving parent-child relationships, leaving long-lasting emotional scars on child victims, threatening the freedoms of those wrongfully accused, impacting the ability of vilified parents to financially support their children, and creating judicial waste grounded in the witting manipulation of various experts and the judiciary by a vengeful parent.
This article addresses the society and legal backdrop against which these allegations are being made; the practical and legal problems created by such false claims; and the absence of a deterrent in the form of codified law that penalizes those who would – absent empathy for the children at the center of such claims – intentionally and falsely accuse competent, caring parents of some of the most heinous acts a parent can commit against a child.
This is a call to action addressed to the legal community and the General Assembly.
False Allegations of Child Abuse in Custody Litigation
Have family law practitioners been wozzled1 by decades of distorted and unsupported reports to believe that false allegations of child abuse are ubiquitous in custody cases? Or do contrived abuse claims commonly and callously choke the efforts of good and loving parents to obtain visitation and custody rights to their children?
As a family lawyer for almost 23 years, I have witnessed a manifest and daunting increase in both real and false allegations of child abuse. This is not a perception uniquely held, rather one shared by many domestic relations lawyers, particularly in the current cultural and political environment. Our nation is seething in grievance. Accusations of intimate partner violence, sexual harassment, human trafficking, and child maltreatment are commonplace, hailed by evolving child protection laws, the revitalization of 2006s “Me Too” movement, Bill Cosby’s conviction for sexual assault, Connie Chung’s open letter to the Washington Post, Dr. Christine Blasey Ford’s allegation of sexual assault against now Supreme Court Justice Brent Kavanaugh, Harvey Weinstein’s indictments for alleged forcible sex acts against two women, eight claims of sexual harassment against 80-year-old actor Morgan Freeman, the firing of James Levine, whose classical music career spanned almost half a century, for claims of sexual abuse and harassment, and Monica Lewinsky’s Vanity Fair essay, “Shame and Survival,” concerning her 1998 affair at 22 years of age with then-President Bill Clinton.
It is against this backdrop of anger and injustice that victims of sexual assault and harassment have found their voice, that 40.3 million global victims of human trafficking (25% of whom are children)2 have been estimated, and that warring parents wrathfully castigate estranged spouses for abusing their minor children.
In custody litigation, the cadence of child abuse claims is jarring and generally met with a censorious ear. This is because legal waters are too often muddied by mendacity unwittingly deliberated and veracity too hastily rebuffed: by guardians ad litem, custody evaluators, forensic investigators, psychological examiners, child therapists – even finders of fact. Pleadings in divorce, paternity, legitimation, stepparent adoption, and third-party custody cases housed in superior court clerk’s offices across the country are replete with examples, stories that find their origins in both poor and prestigious neighborhoods, schools private and public, and tales real and imagined. Yes, parents can and do make “completely false and unsubstantiated claims of abuse…to better [their] chances of getting … custody and [to] keep the children from the other parent,” 3 and it is not at all uncommon for divorce cases to be precipitated by petitions for protection from family violence that result in the alleged perpetrator being removed from the marital home and restrained from seeing his or her child.4
The Domestic Violence Landscape
Historically, the domestic violence landscape has been rendered in erratic hues of black and blue:
- an otherwise law-abiding mother who responds to her teenage daughters’ poor math grade with the buckle end of a belt – her daughter a moving target, and the mother unconcerned with where on the child’s face or body the buckle might land; or
- the exasperated, single mother who chokes her teenage son until he loses consciousness for failing to respond with sufficient speed to her bidding; or
- the father who, upon being fired, leaves his nine-year-old son’s back and legs covered in welts; or
- the mother who disciplines her truant daughter by pulling her by her hair across the carpet; or
- the mother who stands unemotionally beside her drunken husband and watches him pull the pink tutu off of his three-year-old stepdaughter and leave a bleeding strap mark across her bum, punishment for failing to address him as “sir.”
These facts, even when demonstrable and horrific, are sometimes summarily dismissed as an exercise in “corporal punishment.” Judges are, after all, human, and what one finds odious, another may deem innocuous, even appropriate (“He who spares the rod….”).
When allegations of child abuse are raised in domestic litigation, the confluence of irreconcilable testimony, human fallibility, and judicial discretion results in one of two outcomes:
1) those robed in reason and insight; and
2) those lynched in injudiciousness and folly.
Allegations of Child Abuse: Simmons v. Wilson
Consider the case of Simmons v. Wilson, 806 S.E.2d 267 (Ga. Ct. App. 2017), reconsideration denied (Nov. 14, 2017). Simmons and Wilson, parents of four minor children, were granted joint legal custody in their 2010 divorce, with Wilson (mother) being granted primary physical custody and Simmons (father) being granted visitation. In 2011, Wilson claimed that Simmons became violent after using methamphetamine, obtained an ex-parte order and following a hearing, a three-year order of protection that suspended Simmon’s visitation with his children (allowing only phone, email, and text contact). Id.
The FV Order required Simmons to submit to a certified family violence intervention program and a psychological evaluation. Id. He was further directed to follow any recommended course of treatment. Id. Prior to the expiration of the FV Order (and after a hearing), the trial court extended the Order thirty days, at the conclusion of which the mother filed a petition to modify custody. Id. She claimed that Simmons never submitted to the requisite evaluation, failed to participate in any drug testing or counseling, and that a resumption of his visitation would put the children in danger. Id.
After an interlocutory hearing, the trial court directed Simmons to take an extended panel hair follicle test, the result of which was positive. Id. Simmons disputed the hair follicle test results during the 2015 final trial and objected to their admission based on hearsay. Id. The trial court suspended the hearing and ordered Simmons to submit to another hair follicle test so that he could subpoena the administrator of the test to the reset trial. Id. After the reset trial was heard, the trial court modified custody based on findings that Simmons tested positive for methamphetamine, failed to get counseling, engaged in odd behaviors, inappropriately disciplined the children, and had no meaningful bond with them. Id. Simmons was denied any visitation, although permitted to communicate with the children through text, email, and phone. Id.
On appeal, Simmons contended that the trial court improperly relied on evidence from the temporary hearing about, among other things, his non-compliance with the family violence order. Id. The Court of Appeals, noted that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination,” but held that in the absence of a transcript, no assumption would be made that the trial court considered anything outside the evidence presented at the final hearing in rendering its decision. Id.
Simmons also claimed on appeal that by appointing a guardian ad litem (GAL) and failing to notify the GAL of the appointment, the trial court denied Simmons an opportunity to demonstrate certain facts through an examination of the GAL. Simmons never mentioned or objected to the GAL’s absence, however, until after the final hearing (in connection with a motion for new trial). Because “[a] party ‘may not idly sit by and watch when possible error is presented’,” the Court of Appeals found that father waived this enumeration of error. Id., citing Dept. of Transp. v. Brannan, 278 Ga. App. 717, 720, 629 S.E.2d 481 (2006).
Simmons further contended that the trial court erred in admitting his positive hair follicle test result from the temporary hearing, arguing that it was hearsay. The Court of Appeals, however, held that since “the subsequent hearing was not included with the record on appeal,” the Court would not speculate as to what happened at the hearing.5 “[I]n these circumstances,” the Court held, “we must assume that the evidence supported the … determination.” Simmons v. Wilson, 806 S.E.2d 267, 271 (Ga. Ct. App. 2017), reconsideration denied (Nov. 14, 2017).
Simmons’ final contention was that the trial court’s award of sole legal and physical custody to Wilson and its refusal to grant him visitation with the children was contrary to the evidence. He essentially argued that the mother failed to meet her legal burden, that there was no substantial change of circumstances affecting the health and welfare of the children warranting a change of custody. The Court of Appeals disagreed.
With regard to the denial of visitation, the Court of Appeals acknowledged that “[i]t is the express policy of this state to encourage that a child has continuing contact with parents … who have shown the ability to act in the best interest of the child …. However, [w]here parents contest the issue of custody of a child, which includes visitation, the trial court has very broad discretion….” Id. “[W]here there is any evidence to support the trial court’s finding, [the Appellate Courts] will not find … an abuse of discretion.” Id., citing Taylor v. Taylor, 282 Ga. 113, 114 (1), 646 S.E.2d 238 (2007); Woodruff v. Woodruff, 272 Ga. 485, 486 (1), 531 S.E.2d 714 (2000) (“In awarding visitation rights, a trial court is authorized to impose such restrictions as the circumstances warrant.”).
The trial court determined that Simmons failed to comply with the family violence order, continued to use methamphetamine, engaged in a pattern of strange behavior, inappropriately disciplined the children, and lacked a meaningful bond with them; the Court of Appeals found that the trial court’s findings were supported by some evidence and the denial of visitation to Simmons was not an abuse of discretion.
For family law practitioners, the Simmons case, while a decision colored in discernment and prudence, leaves some lingering questions, such as:
- Is a child’s psychological well-being is furthered by the absence of any visitation with an abusive parent instead of long-term, supervised visitation?
- Would supervised visitation sufficiently alleviate concerns about poor impulse control?
- Would carefully tailored language in the order of supervision prevent an abusive parent from denying abusive behaviors in the child’s presence and instilling frustration, anger, and sadness in that child?
- If the abusive parent was unreliable in showing up for supervised visits at what point would the visits become counterproductive?
- To what extent can an order of supervised visitation realistically protect a child from being cursed at, threatened, intimidated, or assaulted by the abusive parent?
- How important is it that prior to all but emasculating a parent-child relationship a trial court hear from a court-appointed guardian ad litem, psychological evaluator, custody evaluator, or some other expert?
- Is it important, as in a dependency setting, that the alleged victim of the abuse – the child – have a voice, other than through a guardian ad litem (GAL), and should that voice carry any weight with the trier of fact?
- Should the child’s age matter when it comes to having a voice?
Allegations of Child Abuse: King v. King
Consider also the case of King v. King, 284 Ga. 364, 364–66, 667 S.E.2d 30, 30–31 (2008) in which the plaintiff (“mother”), accused the defendant (“father”), of molesting their daughter. The parties in that case were married in August of 1993, followed by the birth of their daughter in December 1996.
In the eleventh year of their marriage (December of 2004), the mother vacated the marital home in Acworth and relocated with the minor child to Macon. The divorce petition mother filed just a couple of months later (in February 2005) did not include an allegation of abuse. Nonetheless, the mother filed reports with the Departments of Family and Children Services in Bibb and Paulding counties, accusing her ex-husband of sexually abusing their daughter. Id.
The parties initially consented to joint legal custody with the mother having physical custody and father having alternating weekend visitation, during which the child stayed overnight with her paternal aunt. Following a hearing in late 2006, however, the trial court granted father some holiday time with the parties’ daughter at the paternal grandparents’ home. The mother failed to produce the child for the holiday visit, after which the father filed an application for a citation for contempt. In early 2007, the trial court found the mother in contempt, as a result of which she was incarcerated and shortly thereafter (the next day) released. The father was granted temporary legal and physical custody, although the Court included a stipulation in its interlocutory order that the paternal grandmother reside in father’s home and supervise his time with the child. The child’s mother was denied any visitation.
In deciding the issues of custody and visitation on a final basis, the Court in King heard from a GAL, the child’s therapist, a forensic examiner, an expert in criminal psychology, and an independent psychologist appointed by the Court to evaluate the mother. Further, at the contempt hearing, the judge saw two videotaped forensic interviews and heard testimony from the child. The GAL recommended that mother have physical custody and that father have supervised visitation with the child. The trial judge, however, found that the sexual abuse allegations against the father were without good cause and awarded the parties joint legal custody, with the father having physical custody and mother having visitation with the child.
Following the denial of her amended motion for new trial, the mother filed an application for discretionary appeal, which was granted. On appeal, she contended that the change in custody was made to punish her for failing to comply with the holiday visitation order. In the Supreme Court’s decision, Justice Hunstein reiterated that in custody cases, it is “the duty of the trial judge to resolve the conflicts in the evidence, and where there is any evidence to support his [or her] finding it cannot be said … that there was an abuse of discretion…” Id., citing Urquhart v. Urquhart, 272 Ga. 548, 549-550(1), 533 S.E.2d 80 (2000). See also OCGA § 19-9-3(a)(2) (best interest of child standard).
Unlike Simmons, in King, a GAL investigation was completed,6 a psychological evaluation performed, and other expert testimony considered. The evidence of abuse by the father was inconclusive and the manner in which the mother handled the allegation drove a palpable wedge between the father and child. Because there was evidence to support a determination that an award of physical custody to father was in the child’s best interest, the Supreme Court affirmed the trial court’s decision. Id.
The King case also raises questions for family law practitioners, such as:
- Was there any credible evidence to support the “inconclusive” claims of abuse, and if not, what is the likelihood that this mother (or any parent who would contrive such heinous claims), will engage in similar conduct in the future to the child’s detriment?
- To what extent should that likelihood be considered by a guardian ad litem and/or the trier of fact and in what way should such a finding impact the mother’s access to the child?
- Should her time be supervised or suspended to prevent her from coaching or manipulating the child?
- What does reason and wisdom demand? Should it automatically raise a red flag if the first time that a sexual abuse claim is made is during the pendency of a contested custody action?
- If the courts act directly and out of an abundance of caution to protect minor children in such cases, only to determine later that the abuse allegations were contrived, and only after the contrived allegations have put the accused’s reputation, livelihood, freedom, ability to support the child, the parent-child relationship, and the minor child’s psychological wellbeing at risk, should there be accountability for the parent who fabricated the abuse – and what should that look like?
- Should a parent who repeatedly makes false allegations be denied access to the courts?
1 Cashmore, J., & Parkinson, P. (2014). “The Use and Abuse of Social Science Research Evidence in Children’s Cases,” Psychology, Public Policy, and Law, 20, 239–250. http://dx.doi.org/10.1037/law0000010
2 “Forced Labour, Modern Slavery and Human Trafficking,” located at www.ilo.org/global/topics/forced-labour/lang–en/index.htm
6 While the trial court did not adopt the GAL’s recommendation that mother be granted custody, “the recommendations of the [GAL] are not a substitute for the [trial] court’s independent discretion and judgment.” Id., citing Uniform Superior Court Rule 24.9(6); Hammond v. Hammond, 282 Ga. 456(1), 651 S.E.2d 95 (2007).
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
False Allegations of Child Abuse in Custody Litigation (Part2)
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