Tuesday, March 12, 2013

False Abuse Allegations: Do’s and Don’ts for Divorce Attorneys

(Note: As a Family Advocate, I am not affiliated with Kevin Hickey. However, the information presented is advice that one may want to consider. Also, please know the State Statutes, particular to your concerns. Here is a great starting point: “State Statute summaries relating to Our Families”.)~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

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With an increasing number of divorce attorneys reporting anecdotal evidence that false allegations of child abuse are on the rise in custody fights, it’s becoming more likely that at some point in your career, you will be faced with that situation yourself.

It’s easy to look at these cases in the same terms and in the same light as any protracted, heated custody case – but that would be a mistake. Allegations of abuse have a way of sticking, even when patently false or clearly made for the purpose of gaining a litigation advantage. And their impact on your innocent client’s life can be devastating and permanent.

If you find yourself in the position of representing a parent who has been made the target of false allegations of abuse, follow the suggestions below to stay proactive and be the best advocate for your client that you can possibly be.

  • Do educate your client – in practical terms – about his or her rights and what they mean.

Despite the fact that almost every American can, by now, recite the Miranda warnings verbatim, most still don’t understand what they mean in practical terms.

Take a moment with your client to go over each of his rights, and come up with various scenarios in which those rights might come into play. Conduct some role-play sessions, if you think it would help your client understand exactly what he has to do to invoke and protect his rights in various likely scenarios (i.e., informal interrogation, asking to search his home, etc.).

At a minimum, stress to your client how important it is that he not to speak to investigators outside your presence, and make sure he’s prepared for the inevitable attempt by investigators to make him feel uncomfortable about invoking his right to counsel.

  • Don’t presume good will on the part of the investigators.

Ideally, we should all be able to rely on the impartiality of law enforcement officers.

But practically speaking, it’s foolish to ignore the fact that those law enforcement officers are human beings and, as such, prone to believing a child’s complaint to be true. When that normal human instinct is paired with a cop’s training and permission to deceive, it’s even more important to be scrupulously attentive to every detail, every communication – and to question even the most basic assumptions.

Question everything they tell you, especially if the communication concerns procedures that impact your client’s rights. Do not take anyone’s word at face value.
  • Do retain a criminal defense attorney if you’re not experienced in this area.

If criminal charges are on the table, talk to your client sooner rather than later about the possibility of retaining a criminal defense lawyer to assist you in defending her against these charges.

Your expertise lies within the family court system – but in many cases, the threat of pending criminal charges can implode an otherwise sound strategy.

In such cases, it’s essential that you bring into the team someone with experience in the criminal courts, so that you both can work together to devise a revised strategy that takes into consideration your client’s needs in both contexts.

  • Don’t hesitate to reach out to experts in your area for information and help.

In the same vein, it’s imperative that you reach out for help sooner rather than later. Talk to other lawyers who have handled similar cases and get their impressions about personalities, procedures, and strategies you’re likely to encounter.

By the same token, reach out to mental health professionals in your area who have experience in forensic abuse investigation and interviewing, who can assist you in evaluating the case against your client.

Also, get in touch with any nonprofit entities in your area or state that might offer assistance in child abuse and neglect cases. These organizations may have their own agendas that may not always coincide with your client’s best interests, but they may have access to a broader set of data that can assist you in crafting your case.

  • Do familiarize yourself with standards in your state for treating counselors and experts.

If your client and/or the children involved in the case have been interviewed, counseled, or otherwise interacted with mental health professional, the first thing you must determine is what type of professional with which you are dealing.

Is it a psychiatrist, psychologist, licensed social worker, etc.?  Many times it is a licensed social worker. Remember that a LCSW is NOT a psychologist or psychiatrist – and that means there are different statutes and ethics rules that apply.

Further, the issues involved in forensic interviewing of children, and the nuances involved in false allegations of abuse cases, many times rise above the training level of a LCSW. Yet the LCSW will insist on continuing to be involved.

Watch for that and be prepared to file a motion to have the LCSW removed from the case if he/she insists on providing counseling to the children.

It can’t be overstated: become intimately familiar with your state’s practice standards and ethical obligations for treating counselors, psychologists, and psychiatrists.

Read everything – the statutes, the regulations, the guidance letters and informal ethics opinions.

The more educated you are on those practice standards, the more quickly you can pinpoint gross conflicts of interest and violations of the standard of care in your client’s case.

This happens much more often than one might think, and debunking the resulting opinion becomes much easier in court when you can identify for the judge exactly how the opining expert violated his own professional standards of responsibility and care.

  • Don’t take the child welfare workers’ word for the process and deadlines – do your own research and insist they follow the letter of the law.

Whether consciously or through long-standing casual practice, sometimes child welfare agency workers play “fast and loose” with the procedural rules.

Do not take the welfare worker’s word for anything when it comes to procedure, especially regarding your client’s right to appeal an adverse determination.

Go back to the statute and any accompanying regulations, and insist that the procedures laid out therein are followed to the letter.

  • Do take a team approach with other experts and lawyers.

A successful defense strategy against false abuse allegations usually requires the involvement of other experts as well as, potentially, a criminal defense attorney.

Rather than treating these individuals as resources on individual points and issues, consider bringing them all together (preferably face to face, but on a telephone or Skype conference call if necessary) and engendering a team atmosphere.

You may be the quarterback of the team – the client is the coach, the ultimate decision-maker – but when you can get all the players on the same page, creative and successful strategies often result.

Such an approach also reassures your client, who is obviously dealing with an overwhelming emotional upheaval, and ensures she will be more likely to remain capable of contributing to her case in a meaningful way.

  • Don’t wait to raise objections to treatment and procedure – bring them up as soon as you become aware of them.

It’s imperative that you call attention to problems in the investigation as you become aware of them. Failing to do so can result in a chain reaction, where one professional relies on the (unreliable) opinion of another, which then becomes enshrined in the court record.

  • Do consider associating with an attorney who’s familiar with false abuse cases.

False abuse allegation cases are a unique hybrid of legal entanglement, impacting not only divorce and custody issues but also criminal defense and civil rights.

In particularly egregious cases (and depending on jurisdiction), there may be colorable state or federal legal claims against the investigating agencies, case workers, and/or participating counselors that need to be identified and considered when selecting specific strategies earlier in the process.

Having the assistance of someone whose practice consists largely of cases where innocent parents are wrongly targeted as child abusers can mean the difference between a successful defense and vindication for your client or your client being wrongly tagged as a child abuser for life.