Allegations of sexual abuse in child custody proceedings are a serious matter. In cases where sexual abuse has taken place, children clearly need to be protected from that abuse. On the other hand, in some cases, a parent may be wrongly accused of sexual abuse and that can wreak havoc on a family as well. The difficulty is it can often be hard to tell from the beginning whether the allegations have legitimacy or whether they are untrue.
Potential Options When Sexual Abuse Has Occurred
In cases where the allegations seem to have legitimacy, a parent can attempt to seek restraining orders and protective orders as reference above to help protect the children from immediate harm. In cases where the medical records support the allegations (of family services or law enforcement seem to give legitimacy to the allegations) the likelihood of prevailing on a restraining order or order of protection enhances.
However, in many cases, law enforcement and family services might not substantiate the allegations or decide not to bring any charges due to a lack of evidence. In these cases, an unsubstantiated allegation, or the prosecutor's declination to bring charges, might not be the end of the matter. In many cases, one parent still believe the sexual abuse took place and may wish to pursue the matter by requesting limited and/or supervised visitation for the other parent.
How To Tell Whether Abuse Has Occurred or Refute Untrue Allegations?
In many cases, obtaining the law enforcement investigative reports and medical records are imperative. From reviewing these reports, one might be able to find evidence that was overlooked and inappropriately disregarded. Admissions or damaging statements could also be found in these reports. On the other hand, it might be that from reviewing the investigative reports and medical records that no sexual abuse took place.
A party who wishes to pursue the matter, or an individual looking to refute untrue allegations, will likely want to pursue a child custody evaluation. A child custody evaluator can often get to the bottom of the allegations and help render an opinion about whether abuse took place or not by reviewing the medical records, investigative reports, interviewing the parties and/or conducting various psychological tests. In many cases, this is the best option.
In some cases, a party might consider a psychosexual evaluation of the alleged offender. Conversely, a party who is falsely accused of abuse, or believes they have rehabilitated themselves, might agree to submit to such an evaluation to disprove the allegations by showing that they have no propensity to commit such abuse.
Some Federal Law and Rules of Evidence on Sexual Abuse
As it relates to the law, minors in all states are protected against sexual assault and abuse, or in other words child molestation. Some states refer in general terms to sexual abuse and other state statutes detail specific offensive acts. Virtually all states include sexual exploitation through child pornography in these definitions. Recent developments in child sex abuse cases often hinge not on the acts themselves, but rather on evidentiary issues, reporting duties of witnesses, and reporting duties of offenders.
In 1995, Federal Rules of Evidence 413, 414, and 415 were adopted to address evidence in sex crimes cases. Specifically, 414(a) states: "In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter which is relevant." FRE 415 allows such evidence to be used in civil cases against the offender. These rules, which may have been adopted by your particular state or included perhaps in your state's exceptions to Rule 404, make subsequent convictions easier to obtain and aid in protecting children.
Additionally, with the aim of protecting children in these types of cases some states have adopted juvenile shielding statutes. The purpose of a shielding statute is to protect the child when testifying against their abuser. The Supreme Court upheld this type of statute in Maryland v. Craig. There the Court found allowing a child to testify out of the courtroom via a one-way closed circuit television, a mechanism adopted by the majority of states, did not violate the Confrontation Clause. This helps to at least minimize the trauma on youth who are forced to re-tell the story of their abuse.
In furtherance of discovering child abusers and thereby protecting children virtually all states require doctors, teachers, day care providers, and law enforcement personnel to report evidence of abusive activity. Moreover, some states also require lawyers, clergy, therapists, counselors, and film processors to report evidence as well. The extent of these reporting duties varies significantly by state so check your local statutes.
You can also read more information on this topic in an article titled: Hearsay Statements of Child Abuse Victims.
Missouri and Illinois Child Custody Attorneys Helping When Sexual Abuse is Alleged
If you need help with child custody matter involving sexual abuse allegations, contact us online or by phone to schedule a confidential consultation at any of our convenient locations in the area.