Are Allegations of Sexual Abuse That Arise During Child Custody Disputes LEss Likely to Be Valid?

An Annotated Review of the Research

Bala, N. & Schuman, J. (2000). Allegations of sexual abuse when parents have separated. Canadian Family Law Quarterly, 17, 191-241.

Nicholas Bala and John Schuman, two Queen's University law professors, reviewed Canadian judges' written decisions in 196 cases between 1990 and 1998 where allegations of either physical or sexual abuse were raised in the context of parental separation. Only family law cases were considered; child protection and criminal decisions were excluded. The study showed that the judges felt that only a third of unproven cases of child abuse stemming from custody battles involve someone deliberately lying in court. In these cases, the judges found that fathers were more likely to fabricate the accusations than mothers. Of female-initiated allegations, just 1.3% were deemed intentionally false by civil courts, compared with 21% when the man in the failed relationship brought similar allegations.
The cases involved 262 alleged child victims (74% of them alleged sexual abuse). Thirty-two percent of these children were under 5 years of age, 46% were 5 to 9 years of age, 13% were 10 or older; for 9% the age was not specified. About 71% of the allegations were made by mothers (64% custodial and 6% non-custodial), 17% were by fathers (6% custodial and 11% non-custodial), 2% were from grandparents or foster parents. In about 9% of the cases the child was the prime instigator of the allegations. This study found that fathers were most likely to be accused of abuse (74%), followed by mothers (13%), mother's boyfriend or stepfather (7%), grandparent (3%) and other relatives, including siblings (3%).
A judicial finding on the balance of probabilities (the civil standard) that abuse occurred was made in 46 cases (23% of all cases). In 89 cases, the judge made a finding that the allegation was unfounded, while in 61 cases there was evidence of abuse but no judicial conclusion that abuse occurred. In 45 of the 150 cases (30% of the cases where abuse was not proven) the judge believed that it was an intentionally false allegation.
In the 89 cases where the court found that the allegation was clearly unfounded, the accusing party lost custody in 18 cases, though this was usually for reasons not directly related to the making of an unfounded allegation of abuse. In only one case was the accuser charged (and convicted) for false reporting (mischief) in connection with the false allegation, though in 3 other cases the accuser was cited for contempt of court in connection with denial of access. In the 51 cases where abuse was proved on the civil standard, access was denied in 21 cases, and supervised in 16. The abuser was criminally charged in only 3 of these 51 cases.
Note: This study may not be representative of all cases where abuse allegations are made after parents have separated, as in cases with strong evidence of abuse, the perpetrator is likely not to contest the issue of abuse in family law proceedings. This study may, however, give a good sense of the cases that are likely to be litigated in the family courts.
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