Child Abuse in Custody Cases

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Nothing is more sacred than the safety of children especially in the trying times that present during a divorce. Sadly, child abuse concerns both physical and mental are at times present in many cases. There is no situation more tragic that is handled more vigilantly by our firm than the issue of child abuse. As you will see from our discussion, how society may view a possible act of child abuse can be very different from how a court handles allegations, and it is an issue with which our attorneys often grapple. I also talked with a couple of members from organizations that battle against child abuse every day for their take on this difficult but very necessary topic of discussion.

We talked about these issues with a legal team gathered for the day. My discussion also includes input from members of two national organizations dedicated to combatting child abuse – Chicago-based Prevent Child Abuse America President and CEO Dan Duffy; and Caleb Kimpel, Writer and Spokesman for Phoenix-based Childhelp.

Here is what we covered:

When people think of child abuse they often think of physical abuse, but in family law cases, can emotional abuse be just as damaging?

It can be extremely damaging to a child, which is intolerable. For instance, if one parent disparages the other you are creating an innate insecurity in that child. So it is extremely important that you maintain all conversation with children as constructive and as positive as you can make it. The courts clearly frown upon this type of emotional abuse. In fact, the disparagement of the other parent can be a crucial factor in the court making time-sharing decisions.

Unfortunately, working in family law you often see parties using the children as some sort of bargaining chip against the other party. I would argue this is a form of abuse. When that is going on it is difficult to watch and I believe sometimes it does rise to the level of abuse. Generally, when it rises to that point I try to get the parties into some kind of counseling so we have a third party in to determine if it is getting to a point where there is psychological abuse going on and we can go to the judge to request action.

During the divorce process children are sometimes stuck in the middle. The children are sometimes manipulated by one of the parents or maybe verbally abused by one of the parents, or made to choose between the parents. A lot of times these things are hard to prove so you do need to have the child evaluated to see what is happening.

Can you think of examples you feel rose to the level of the abuse of a child mentally?

Emotional abuse can be very damaging to a child. I had a case where the other parent was very hard on a child based on her weight and how they approached it was not helpful to the child and it led to a situation where the child began cutting herself and became anorexic. So the court had to come up with a framework for counseling not only for the child but also the parent to know how to appropriately handle these issues. Meanwhile, there were also visitation restrictions placed on that parent as those issues were addressed.

I feel like sometimes people neglect their child because they are putting their child under stress. For instance, I represented a gay gentleman who had a child and he felt like he didn’t want to be around his child during his divorce because so many negative things were coming out that he didn’t want his child to be subjected to. Therefore, the mother felt like he was neglecting the child, but he felt he just didn’t want to bring negativity in the child’s life. That kind of push and pull on a family situation can cause serious stress.

Are there legal remedies associated with mental abuse?

There are often orders for both sides not to discuss their case. But what occurs in some cases is one parent starts to talk about the litigation with the child, even if there is a standing order saying that should not occur. You should not discuss the litigation with the children. Studies have shown that it can scar them and it is difficult enough time without talking about something like litigation they may not understand.

One thing I see a lot of is one parent alienating a child from the other parent’s affections. To me that is abuse, because you are using that child to hurt the other parent. It is very sad when that happens. I wish there was more case law on that because it is very common in divorce cases.

I have had cases of parental alienation which are very common these days. That is very serious as it can instill in a child he or she is not safe with the other parent or doesn’t want to be with that other parent. Some judges have taken serious action when there is evidence of parental alienation. That term of parental alienation is newer and has just really been recognized by our courts so it takes a lot for the court to take any action on it, but I have seen a movement toward protection of the emotional well-being of the child.

That is interesting, is parental alienation something that Childhelp has encountered in its studies and work?

Parental alienation is a specific type of emotional abuse that can certainly be traumatic and may share some of the short-term and long-term ill impacts of other types of emotional abuse. It definitely speaks volumes to the importance of divorcing parents to treat one another with respect and dignity, if for no other reason than to honor their child’s well-being. Another important consideration is poly-victimization. When a child is victimized, it often happens in a context of dysfunction, and according to surveys of adult survivors, most victims experience more than one type of abuse. What’s more, with each instance of victimization, long-term impacts of abuse multiply.

What about physical abuse? Are there things you commonly see in your cases?

I think corporal punishment is what I see the most. While spanking is allowed, when it rises to a level of huge welts on a child or horrible marks then there may be issues. I see that a lot because if you have one parent who believes in spanking, and one parent who does not, there can be issues with accusations of child abuse arising. If it rises to a level of welts and huge bruises that is unacceptable and the courts will often find that to be unacceptable. And that can go toward timesharing issues such as supervised visitation if a court rules the child is not in a safe environment.

In your experience with Prevent Child Abuse America, is physical or emotional abuse easy to spot, Dan?

It’s not always easy to tell if a child is experiencing child abuse. While there are many different signs, some of the most common involve sudden changes in a child’s behavior, being disruptive or struggling in school, and being fearful of going home or being around certain adults. The most important thing that you can do is talk to a child who you think may be in need of help. Whether it’s a child you coach, a friend of your child, or even a child you see in your neighborhood, let them know that they can tell you anything and that you are there to help.

With the notion of child abuse obviously being abhorrent to any rational human being, are there cases where people make up accusations to help their cause in court?

Those are such tough issues. You always as a lawyer have to be careful and make sure what a particular client is telling you is accurate information. On the one hand, you don’t want to give a client the impression you don’t believe when he or she tell you that their child is being abused by the other party. But on the other hand as a lawyer we have the obligation to make sure when we present evidence of that kind of nature to a court that we have proof. There are a lot tools at our disposal to do that. We can appoint a Guardian Ad Litem to represent the child and investigate the allegations of the abuse. There are expects such as psychologists or social workers that we can employ to make a determination as to whether certain acts have occurred.

Are there times when a judge did not see an incident you felt rose to child abuse in the same light?

Many times we file temporary motions for relief when we are confronted with an incident and it really does depend on the severity of the issue in the eyes of the court. A parent may come to me saying this has happened to their child; they may deem it heinous; but it may not be seen as heinous to a judge who has to look at it more globally as to what is an emergency situation and what is not. So I try to take that into consideration.

Many judges will not take child abuse allegations seriously unless there is something backing the allegations such as substantial proof. The courts are also very skeptical of a party who is making accusations of child abuse who has not reported the abuse to law enforcement or child services. The courts very often use reports from those agencies to guide them as to how to determine child custody issues. If the allegations are pretty serious, the courts will err on the side caution and may order a Guardian Ad Litem to look into the situation, who can talk to the child and render a report the court can consider.

The first thing I have the parent do is call the police or child protective services. I do see accusations a lot on both sides. Parents that are going through a divorce often make claims of child abuse some that are true and some may be false. I have to trust my client, but I have to flush it out because we have to be able to prove it. We have to have some concrete evidence. We can also ask the court to have it investigated such as through an appointment of a Guardian Ad Litem.

Child abuse accusations have to be handled very seriously. You need an attorney who has an understanding of these issues in order to take the steps to obtain the best possible situation where the child can be safe.

If you think you suspect abuse, remember that it is far better to err on the side of caution and helping a child. Trust your gut and if you believe something is wrong, call the police or your local child protection service. We all have a role to play in the prevention of child abuse and yours can simply be to speak up when you think something is wrong.

This is such a critical topic for us to cover. As usual the Ayo and Iken legal team put their minds together for our informal think tank and the result is a comprehensive guide to understanding the issue. Thank you to Mr. Kimpel and Mr. Duffy for your valuable input. That wraps up our Roundtable for today. Thank you to our readers for joining us and reading today’s discussion topic. Be sure to visit the Ayo and Iken Roundtable again for breaking issues and relevant topics. See you soon!