Child Abuse and Virginia Custody Cases

Posted on Oct 12, 2020 by Katie Carter

Child abuse cases are seriously some of the most harrowing cases that family law practitioners have to deal with. To be honest, I can only imagine what it must feel like to have children in a position where you worry that, if your child’s father receives custody, they may be abused or mistreated in any way.  Still, allegations and/or fears related to child abuse are NOT enough to prevent or withhold visitation, though, and you’ll likely have to take more steps to protect your children, if you’re afraid that they are being or have been abused in their father’s custody.

Why?  Isn’t it enough to suspect that something is happening?  Well, no.  Why not?  Because your allegations could be made up, either on purpose or out of fear, and courts require evidence.

Do parents actually make up allegations of abuse in an effort to win custody? Maybe. There’s certainly the perception that it happens.

It’s complicated. Maybe more complicated than it should be. Because, you see, family court judges are jaded. They’ve seen cases where they believe – or where it seems like – one parent made up abuse allegations against the other. Why? Well, because the (the parents, I mean) believe that making abuse allegations is the ultimate ‘gotcha’ and that it could end in them receiving custody over the child’s other parent.

I don’t know whether judges can point to actual, specific cases where it turned out that the parent alleging abuse was lying or overstating the facts, but there exists the perception that a parent, hell bent on getting custody, will lie about the child’s other parent.

Or, at least, they could. Certainly, there is some motive there, both in the love that a parent bears for a child, and in the desire to ‘win’ over the other parent, or otherwise control them. And, anyway, besides all that, court cases are always based on evidence and what you can prove. You can just make allegations and have that be enough. It doesn’t work that way. It has never worked that way.

Custody cases – like any other court cases – are based on evidence and what you can prove. Even (or even, perhaps, especially) in cases where abuse is alleged.

In a criminal case, we say innocent until proven guilty. The standards are a little bit different in civil cases like this one, but, still, the fact remains – you can’t just make allegations and impose consequences, like taking someone’s child away, without serious, significant evidence.

Think about it. What if the shoe were on the other foot, and your child’s father alleged abuse against you. It’s completely, 100% baseless. Would you say, “Better safe than sorry!” NO! You’d say, “That’s a lie, and you can’t take my kids from me based off of a complete lie with no evidence!” You’d say, “I have rights as a mother!” And you’d be RIGHT.

The courts don’t preemptively take custody away from parents just because there are abuse allegations!

This is both good and bad, right? Good, because an innocent parent is protected from some baseless allegations keeping them away from their children – because that would harm the children, and the parent, too. We’re less concerned about the impact on the parent; custody cases are really about the children, and assessing what’s in a child’s best interests.

Doesn’t that mean we have to wait for kids to be actually abused before the courts are willing to do something to help?

Well, it means that we need evidence. Real, concrete evidence. So, probably, yes, as terrible as it is to say. A parent could lose custody without proving that they’ve abused their children – we could show, say, mental illness, addiction, or other unfitness that could mean that they are not capable custodians. In some cases, you can get supervised visitation, too, so there are options available even in cases where child abuse isn’t immediately proved or provable at the time that the case goes to trial. Still, whatever you win in court will only be won by evidence that supports your allegations.

If I allege child abuse, do I risk losing custody if the court doesn’t agree with me?

Certainly, if the court thinks there’s a possibility that you lied or otherwise made up allegations of child abuse in order to get the custody and visitation schedule that you wanted, it could have an adverse impact on your case.

The court is VERY concerned with the coparenting relationship, and in setting up a parenting schedule that supports the ability of both parents to be as involved as possible. Though that doesn’t always mean shared custody is ordered, the new laws do sort of prefer shared custody over other forms of custody in many cases. If you struggle with coparenting, and supporting the child’s relationship with his or her other parent, it could easily work against you in your custody case.

Making up allegations of abuse – or getting carried away about something that amounts to him parenting differently than you but isn’t truly abuse – will undermine your credibility in court, too. You could look hysterical, unreliable, or worse. The judge may infer that YOU have a mental health issue, or some other issue that makes you less fit to be a parent than their father.

Making allegations of child abuse – without serious, concrete evidence – can ultimately harm your custody case.

If you are worried about child abuse, talk to an attorney. Come up with a plan. Absolutely, positively do not start to make allegations without taking some real time to consider the impact on your case. Sit down with an attorney, discuss the evidence that you have, and come up with a careful, considered, deliberate plan to move your case forward – and keep your kids safe.

For more information, request our free report on child abuse in custody cases, download our custody book for Virginia moms, or schedule a consultation by giving our office a call at 757-785-9761