Law Enforcement Involvement in Child Custody Proceedings

Law enforcement in child custody proceedings can often take place when severe allegations of abuse occur. Obviously, the concerns can take a different turn when a parent is accused of child abuse versus lodging accusations against the other parent. Parents should be very careful in terms of involving law enforcement. In cases where abuse or neglect has taken place, law enforcement involvement is necessary. However, if it is later believed that the allegations brought were false or trumped up, this can be severely damaging to a custody case.

When a parent has been accused of child abuse, in many cases, it is necessary to obtain legal counsel regarding the criminal allegations. Some attorneys may practice family law and criminal law. However, in other instances, an attorney might not practice criminal law. Thus, it is vital to refer any client to criminal counsel if they choose an attorney who does not represent clients in criminal proceedings. Ultimately, the end result of a child custody proceeding can be directly affected by the involvement of law enforcement and criminal proceedings.

In some cases, law enforcement involvement can result in family services becoming involved to investigate the allegations. If the allegations are substantiated, this can often result in family services stepping in. In some cases, family services may remove the children from the home and/or take legal custody of them. In other cases, where extreme abuse or neglect has taken place, children can end up in foster care and/or the rights of their parents could ultimately be terminated.

As it relates to laws protecting children, the most basic of child protection laws are those preventing child abuse and neglect. At the federal level child abuse and neglect are defined by the Child Abuse Prevention and Treatment Act (CAPTA) as: "Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm."[1] A typical state statute will find abuse if a parent intentionally or with reckless disregard of the consequences causes physical or mental injury to a minor. Thirty-eight states include acts which place a child or create a substantial risk of harm to the child's welfare. Thirty-two states explicitly provide definitions for mental or emotional abuse in their statute. Almost all states recognize emotional or mental abuse within the ambit of their statute. Child neglect is typically defined by states as the failure of a parent to provide necessaries such as food, clothing, shelter, and appropriate medical care. Twenty-four states also include a failure to educate in their definition of neglect and seven states specifically define medical neglect as the failure to provide needed health care treatment.[2]

The problem, however, is that often child abuse can be difficult to separate from parental discipline. The Supreme Court has recognized the right of parents to discipline their children stating that there is a "private realm of family life which the state cannot enter."[3] Parents have fundamental liberty interest in the care, custody, and management of their children.[4] But also, the Court has stated that those rights are not "beyond limitation" either.[5] This forces courts into a different analysis than criminal intent. Instead courts focus on whether the discipline imposed was clearly excessive or beyond the bounds of decency. The parens patriae power justifies the deviation from criminal intent. The state's goal of protecting children has also allowed for the finding of child abuse when one spouse failed to prevent abuse or when the abuse has been purely verbal/mental.[6]

Child neglect is also often difficult to define. It is difficult to fashion an appropriate standard which equitably accounts differences in the economic means of families. Indeed, twelve states and the District of Columbia exempt financial inability to provide from their definitions of neglect.[7] In In re Juvenile Appeal,[8] a single mother lost custody of her five remaining children when her nine month old unexplainably passed away at the mother's home. The state retained custody pursuant to a temporary custody statute even after the mother had been cleared of any wrong doing.[9] The basis for this came primarily from social worker testimony that the home was dirty, contained roaches, and on occasion the two older children attended school without having eaten breakfast.[10] The court concluded that even in a temporary custody hearing the burden of proof lay with the state.[11] The trial could not conclude the children were presumptively neglected and force the mother to prove otherwise.[12] When the state is intervening into family custody affairs the parents and the state each have one compelling interest, the interest in family integrity and protecting children, respectively; while the children have two interests: an interest in safety and an interest in having a stable home environment.[13] The court, however, in In re Juvenile Appeal adopted a different burden of proof than that previously mandated by the Supreme Court.

In Santosky v. Kramer, the Court concluded that to terminate parental rights the state had to prove the requisite statutory elements by clear and convincing elements.[14] The Connecticut Supreme Court distinguished Santosky based on the issue at hand being temporary custody as opposed to a permanent termination of parental rights.[15] The higher standard of proof mandated by the Supreme Court reflected the permanence of the order and represented a value choice of the Court in non-interference with family matters.[16] In a temporary setting the primary concern was the immediate welfare of the child and as both of the child's interests are competing, welfare and a stable family life, there is no need for a higher standard of proof to reflect a preference for non-interference with the family.[17]

In sum, no matter the allegations, parties to custody proceedings should take the involvement of law enforcement seriously. In these instances, it is vital to have legal representation.


[1] 42 U.S.C. § 5101 (1982).

[2] Definitions of Child Abuse and Neglect, Child Welfare Information Gateway, Childwelfare.Gov, (Feb. 2011), available at www.childwelfare.gov/systemwide/law_policies/statutes/define.cfm.

[3] Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

[4] Santosky v. Kramer, 455 U.S. 745, 758 (1982) quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972).

[5] Prince, 321 U.S. at 166.

[6] Newby v. United States, 797 A.2d 1233 (D.C. App. 2002); In the Matter of Shane T., 453 N.Y.S.2d 590 (N.Y. Fam. Ct. 1982).

[7] Arkansas, Florida, Kansas, Louisiana, Massachusetts, New Hampshire, North Dakota, Pennsylvania, Texas, Washington, West Virginia, and Wisconsin.

[8] 455 A.2d 1313, 1315 (Conn. 1983).

[9] Id. at 1317.

[10] Id.

[11] Id. at 1323.

[12] Id.

[13] Id. at 1319.

[14] 455 U.S. 745 (1982).

[15] In re Juvenile Appeal, 455 A.2d at 1324.

[16] Id.

[17] Id.