Family Law

The Cost of Custody Litigation When Allegations of Abuse Exist

By Fox Rothschild

Contested child custody matters are the most legally and emotionally difficult matters to be dealt with in family law.  They certainly are the most difficult to resolve - costly, contentious and complex. An amicable resolution is generally not common. 

These matters are made all the more difficult with allegations of child or sexual abuse by one party against the other – especially, when they are made without foundation. 

What do you do when your client has been falsely and unfairly accused of child abuse? 

The case certainly takes on a different tone and direction – a direction which a divorce lawyer cannot control due to the involvement of a county or state agency, usually known as "Children and Youth".  It is most difficult to meaningfully participate in such a process that is usually secretive in nature. It is not unlike the grand jury process.  However, in these matters, there is no jury; and, the fact finder is usually a police officer, social worker or agency. 

Quickly, Domestic relations law evolves into criminal defense with allegations (not evidence) of wrongdoing generally being made by one hostile parent against the other.  The factual basis for these allegations is generally not predicated upon tangible evidence, but merely upon suspicions and emotions which bleed over from the divorce into the custody case. 

Nevertheless, these allegations have profound consequences to both parties, let alone the child involved.   As a divorce lawyer, how do you advise your client? 

• Do you tell him/her to (not to) participate in these proceedings?  Or, advise him/her to just let these proceedings take their course.  
• If you or your client calls the investigating authority, does it heighten its/their inquiry?  Or, does meeting with the investigating authority and your client limit the inquiry and its consequences? 
• Do you advise your client to take a polygraph test?  What are the consequences? 
• What about the complaining witness?  If the charges turn out to be unfounded, do you drop the matter or do you take affirmative action against the opposing party for slander, etc.? 

None of these are very good options. If you choose to go “quietly into the night” and not fight back, remember that attacks on reputation (even if shown to be false) may carry a membrane of suspicion, forever.   And, let’s not forget the child – a victim either way.

Full post as published by Pennsylvania Family Law on January 02, 2008 (boomark / email).