I’ve said it before and, though it pains me, I’ll say it again. Where domestic violence and child abuse are concerned, the court is very, very jaded.
It’s not just the courts, either. Attorneys, too, can become jaded. We hear terrible stories, day in and day out, and, sometimes, they’re not true, or they’re exaggerated. Even if they ARE true – which is difficult, if not impossible, to know – there’s often not that much one attorney can do against a larger machine.
Guardians ad litem are attorneys, to they, too, fall into the former category.
I’ve been told that things are this way because, somewhere along the line, too many mothers cried foul in an attempt to keep custody away from their children’s fathers. So, along the way, the other professionals associated with the court grew more impenetrable with respect to child abuse claims. After all, they reason, what’s often in a child’s best interests is to have a relationship – as strong a relationship as possible – with both parents. For that reason, we have to look very discerningly at abuse allegations. We need concrete proof that the abuse actually occurred – otherwise, we risk removing an important figure from a child’s life, and replacing it, instead, with a mother who would use her influence to further alienate the child from the father.
The longer I practice, the less this argument holds up. As far as I am aware, I have yet to meet a mother who has completely made up abuse allegations. There’s no question that there are a great number of incredibly contentious custody cases. That parental alienation exists. That extensive litigation is a huge contributor to the breakdown of coparenting relationships which causes untold damage to the children involved. But outright lying?
I mean, sure. Maybe. In an isolated case. I would say, in family law, you quickly learn that nothing is truly impossible. But that also doesn’t mean that it’s common, or nearly common enough to justify a total institutional failure to serve women who make allegations of abuse.
I’ve been told, too, that we can’t act preemptively. That we can’t take away custody and visitation based on something as insubstantial as an allegation. That we can only act after the fact, to take away or restrict access or to supervise visitation with a child after he has already been abused.
You mean, my child is a guinea pig? We have to send the child – no matter our misgivings – to his father’s until he’s actually demonstrably and obviously abused? No matter what else has happened previously?
I don’t have a good answer to that. Because, obviously, “yes,” is a pretty terrible answer.
Abusers are good at hiding their tracks. You know this. I know this. It seems like it’s only the court that doesn’t know this.
Attorneys are jaded, yes – but we’re also afraid to lose cases. I don’t mean that in terms of our win to loss ratio, for marketing purposes.
No – nothing so self-serving as that, though we all really, really do HATE to lose. When I started practicing, I was told that going into court without ironclad proof of abuse was risky – not because dad might get parenting time – but because dad might end up winning custody, if the court, in all it’s mercurial splendor, found that, for whatever reason, she was questionable.
If there’s anything more unpalatable than dad having parenting time with a child who he has abused (regardless of whether we can prove it), it’s mom losing custody because she points it out without ‘enough’ proof. Right? Yet that’s the risk we take.
Plus, we tell ourselves, we don’t know whether these allegations are true, or exaggerated, or entirely made up. And it’s true – we don’t know. I don’t know an attorney representing a client who was ever physically present when the abuse took place. So, 100% of the time – that I know of, anyway – the attorney representing the mother did not witness the incident. It’s hard to know. Especially in a professional capacity, since the people we work with are, most often, not our friends; they’re our clients, so we don’t have a true sense of who they are in a wider capacity.
So, what do you do, if you’re up against a jaded court, a jaded judge, a jaded GAL, and potentially even a jaded attorney?
You advocate for your kid.
You don’t have a choice; no one else will do it for you. It’s not easy, that much is true. But you have to serve your own conscience and protect your own child(ren).
1. Interview attorneys. Pick the best.
When I was interning, I remember a conversation well. I was sitting with an attorney who I was shadowing, and he told a woman that if she didn’t like the advice she was given, she should ask again. And if she found someone whose advice aligned with her judgment, she should hire that lawyer. If she didn’t, then she should re-examine her position.
There’s a lot of truth to that. Don’t hire someone who says that he’ll never be able to get you what you want. Maybe he’s right – maybe he isn’t – but you won’t be able to accept that fact unless and until you’ve interviewed other lawyers, too. Are they all saying the same things? Is one listening to you more or better than the others? Do you feel more compassion or empathy from one lawyer? Do you listen to one attorney’s plan of action and feel more comforted?
It’s not always as simple as taking the advice that you want to receive, but it is a question of interviewing and finding the right attorney for your case. Sometimes, it’s just not a good fit. In a case like this, you need a good fit.
2. Consider other professionals who can help your case.
If your child is working with a therapist, consider whether she would be an asset to the case. Consider, too, working with specialists on child abuse – like Richard Ducote. Consider therapists who work as part of a wider national network.
Did you file police report? Can you get the officers who arrived on the scene to come to court to testify? What about your child’s pediatrician? Hospital or emergency room records?
Ask for psych evals. Or drug tests. Or parenting capacity evaluations – though not without working with your attorney as it relates to your specific goals.
3. Work effectively with the Guardian ad litem.
The Guardian ad litem’s opinion will be important. You want to get that relationship off on the right foot, and to help that attorney see the truth of your case. Fill out the questionnaire, don’t treat your sessions with the GAL as an opportunity to bash your child’s father, and stick to the facts.
You need the GAL to recommend in your favor, if at all possible. Even if the GAL seems to be tending the other way, don’t get frustrated or give anything away. Maintain, always, a polite, cordial, and respectful relationship.
4. Document, document, document.
This is always my advice, but it’s especially true here. Even if you don’t have solid proof, a journal of relevant dates with a factual description of events that took place can be helpful.
To the extent that you do have evidence, protect it. Don’t leave, for example, your jump drive somewhere that he can find and destroy it. Make sure you have multiple copies, and protect evidence in safe places.
It’s not easy. And this list isn’t as comprehensive as I’d like, either! There’s no question – these cases are difficult. They often feel impossible. But, if your child is being abused, what choice do you have?
You need an attorney on your side who is committed to representing you, who believes in you, and will do what it takes to help protect your child – even when it seems like the rest of the court doesn’t believe you.
For more information or to learn more about custody cases in Virginia, give our office a call at 757-425-5200 or download our free custody book for Virginia moms.