This article examines the difficulty in investigating sexual abuse allegations in divorce custody cases. These cases are difficult to investigate because of the lack of evidence, possible biases and the bitterness between the parties. The problems are compounded by shrinking budgets and staff in many investigative agencies. Questions are listed that should be paid close attention to when credibility issues arise, including: to whom did the child first disclose?; why is the child telling now?; what evidence is available to confirm what the child is saying?
Three types of sexual abuse allegations are identified: (1) those in which there is a sincere, legitimate and valid report made which is true because the abuse actually occurred; (2) those in which there is a sincere, legitimate, and valid report made which is a misinterpretation or those in which a direct and correct report of some behavior or statements made by the child, but there was no abuse; and (3) those where there is a deliberately malicious false allegation made. Four investigative concerns are summarized, and recommendations for interviewing are made.
Haralambie, A. M., & Haralambie, A. N. (1999, Fall). Representing the Protective Parent in Sexual Abuse Custody Cases. APSAC (American Professional Society on the Abuse of Children) Advisor, 12(3), 10-14.
This article provides guidance to lawyers representing the protective parent in sexual abuse custody cases. It outlines the steps lawyers should take, beginning with assessing the strength of the abuse allegation. Lawyers need to assess the factual basis of the claim and to make a good faith attempt to determine the truth. The lawyer should refer parents who believe their children are being abused to the most qualified experts available. The client's willingness to accept expert advice is essential and will benefit the client during the process.
Part of the lawyer's investigation is to reconstruct as accurately as possible the process of how the allegations came to light, including to whom the child spoke, and who observed or heard things that might corroborate the allegations. If the allegations do not appear to be true, then the lawyer must determine whether they were deliberately fabricated or merely good faith misinterpretations. The article recommends having a lawyer appointed to represent the child as early as possible in the proceedings. The article discusses inconclusive or insufficient evidence, allegations of parental coaching, educating the judge, dealing with the client's emotions, and dealing with dropped child protection and criminal cases.
Johnston, J. (2003). Parental alignments and rejection: An empirical study of alienation in children of divorce. Journal of the American Academy of Psychiatry and the Law, 31, 158-170.
Johnston, J., Gans Walter, M., & Oleson, N. (in press). Is it alienating parent, role reversal or child abuse? An empirical study of children's rejection of a parent in child custody disputes.
Janet R. Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child, 38 Family Law Quarterly (2005).
Paquette, Catherine. (1991). Handling Sexual Abuse Allegations in Child Custody Cases. New England Law Review, 25, 1415.
Evaluating allegations of sexual abuse is one of the most challenging and difficult issues an attorney can face in a custody case. Sexual abuse allegations must be dealt with on a case by case basis as no one theory or method can explain or account for these cases. During a divorce, a family may break down and become dysfunctional.
Paquette discusses myths of child sexual abuse including beliefs such as: all abuse leaves physical evidence, all abused children will some sign of psychological trauma, and children who are actually abused will not deny it later. The author addresses issues related to child witnesses including: the credibility of a child witness, a child's competence to testify, and trauma to the child caused by testifying in court.
Suggestions are made concerning handling these cases such as utilizing a professionally trained evaluator to interview the child, and the coordination of all professional and legal participants to ensure an effective prosecution with the least amount of trauma to the child. The support of the family and the safety of the child is of utmost importance. Concern about ruining a man's reputation should be outweighed by the harm of sending the child back to be abused. Furthermore, judicial systems should avoid punishing the accusing parent in a custody proceeding by changing the custody when an allegation of sexual abuse is deemed "unfounded." Unfounded does not mean false or fabricated; it only means that there was not enough evidence to determine whether sexual abuse occurred.
Waldon, K. H., & Joanis, D. E. (1996). Understanding and collaboratively treating parental alienation syndrome. American Journal of Family Law, 10, 121-133.http://www.fact.on.ca/Info/pas/waldron.htm
EXCERPT: "Gardner 's conceptualization of the problem and the dynamics underlying the problem proved at best incomplete, if not simplistic and erroneous. He portrays the alienating parent as virtually solely responsible for the dynamic, turning the vulnerable child against the innocent target parent. More extensive research on the topic has more clearly established the complex involvement and motives of all of the actors in this disastrous family drama. Each of the family members takes a role in the alienation process, which usually begins well before the divorce event. It should be kept in mind that not all instances in which a child is rejecting a parent following a parental separation reflect PAS. In some families, the child rejects a parent based on the child's actual experiences with that parent. There are very likely many children in intact families who wish to avoid or reject one of the parents based on that parent's behavior. A parental separation may simply raise such a wish to the public level." (p. 121).
Richard Warshak, Misdiagnosis of Parental Alienation Syndrome, 20 American Journal of Forensic Psychology 31 (2002).
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