(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.
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