The Beginning of your Virginia Custody Case: Part Two

Posted on Jun 11, 2014 by Katie Carter

On Monday, we started talking about child custody cases. We talked about planning at the beginning of your custody case, how custody is determined, what factors affect custody, and goal setting. In most cases, this is a great start, because we start identifying and addressing the potential issues and coming up with ways to try to solve them. Of course, not all custody cases are the same, and some present much more complicated issues. Some of the most complicated cases present issues of possible physical, sexual, or emotional abuse.

Abuse cases are some of the hardest cases in existence so, if you’re anticipating one, you’re going to have to work doubly hard to be sure that you’re prepared for whatever comes. Strategy is always important in a custody case, but it’s extra important when you’re alleging such serious issues. Start here to find out some of the things you’ll need to know before you allege abuse in your custody case.

What to do in cases of abuse

Up until now, I’ve really only been talking about divorces where both parents are relatively normal people who genuinely want the best for their children. Fortunately, these types of situations account for probably close to 95% of custody cases. Even though mom and dad can't really get along and don't want to continue with their relationship, they both genuinely love the child and want to be a part of her upbringing. They may disagree about a lot of things or want to make different choices regarding the child's upbringing, but their hearts are in the right place. However grudgingly, both parents agree to work together for the sake of the children.

Sometimes, though, that really isn’t the case. Not all parents are good people who sincerely want the best for their children. If your child’s father is abusive, or you suspect that he will become abusive, whether sexually, physically, or emotionally, you want to act to protect your children as much as possible.

It's easy to get emotional at the start of these cases. After all, your child's well being is in jeopardy, and you know that it's your responsibility to do everything you can to protect your child from any kind of abuse from any source. In cases of abuse, I recommend that you speak with an attorney immediately to be sure that you’re taking every possible step necessary to protect your children. Sometimes, the decisions you have to make legally are actually counterintuitive, especially when your momma bear instincts start coming out in full force, and you don't want to make any decisions at the beginning of your case, because you're angry or scared or being protective, that hurt your children in the long run. Be very careful, and don't make any rash decisions until you've had a chance to talk to an attorney about your specific case and come up with a plan for how to move forward. Your attorney can help you come up with a plan that takes your concerns into account and helps you feel like your child will be protected. Until you've had that conversation, though, tread carefully.

Still, we're going to talk about abuse cases generally, just to give you an idea. This article is meant to help give you an idea of where to start, but, if you know or suspect that your child has been subject to abuse at the hands of your child's father, you really do need to talk to an attorney about your unique situation as soon as possible.

In cases of abuse, we typically need proof to present any information at all to a judge. Remember how we talked about factor 6 on Monday? That still applies here. If you say, “I withheld visitation because I suspect my child’s father is abusive,” the judge will want to know what evidence you have. Without evidence, you look to the judge like you’re using abuse as an excuse to keep your child’s father from having contact with the children.

Merely suspecting abuse isn’t enough. Likewise, it isn’t enough to say, “I know he will do this if he’s given half a chance.” In the court’s opinion, it is incredibly important for the child to have access to both parents. Just like in the criminal justice system, we can’t punish someone because he might steal something in the future, or deny him privileges because he probably will do something illegal eventually if he is free to do so, and we can’t take custody and visitation away from a parent just because he may actually turn out to be a bad guy.

Even if you KNOW there is abuse, you’ll need pretty serious proof to convince the judge. Something like a substantiated report from CPS would be the kind of thing the court would expect to see.

It’s ugly, and it’s not fair, but judges have seen hundreds (sometimes even thousands) of custody cases, and they’ve seen parents on both sides go to some pretty ugly extremes to get their way. The fact of the matter is that judges have seen mothers use these types of allegations to get and keep custody, and prevent their child’s father from having any contact. If you can’t prove the abuse, you risk being lumped into the same category.

So, what should I do if I know or suspect that my child has been abused?

An attorney can help you gather your evidence and present your case to the judge if you fall into this category. Abuse cases are incredibly complicated and must be carefully handled.

Here’s the risk: you go into court without good, solid evidence, and you make your claim of abuse. Your child’s father denies the abuse, obviously, and says you’re using this as a bid to keep your children away because you’re mad, upset, angry, or crazy. Without proof, the judge has no reason at all to believe your story. How can he, without evidence, facts, or exhibits to back up your story? It’s just your word against his. The judge could order a total change in custody, so that dad has primary physical custody and you have visitation. I don’t need to tell you that this is pretty much a nightmare level situation.

To make matters worse, in these types of cases, mom usually comes to court and sobs hysterically, while dad remains poised, calm, and confident. Dad says mom is crazy, and she looks a little nuts to the judge, too. (After all, who wouldn’t look and feel a little nuts if their children were being abused?) Mom says dad is a terrible abuser and a nasty person, and dad sits there in front of the judge in a nice collared shirt with his hands in his lap and a charming demeanor. While we understand the dynamics of the relationship (moms are momma bears for their kids, and abusers are generally charming and likable when you first meet them), it can be difficult for the judge to see.

In the worst cases, these factors combine to a custody perfect storm, and dad walks away with custody.

Are you saying that, even if I think my child has been abused, I shouldn’t bring it up?

Maybe. Again, I think the best thing you can do is talk to an attorney about your specific situation, and come up with a customized plan of action. Without knowing the facts of your case, it’s hard to give specific advice. However, it is possible that the absolute best course of action is to avoid the perfect storm situation, and that may mean sitting on your allegations of abuse.

Think about it: how can you protect your children if you go into court without evidence? You are practically handing your child’s father custody on a silver platter. If he’s an abuser, that’s the last person you want to have more time with your children.

In some cases, as counterintuitive as it may seem, it’s best to plan NOT to bring up any allegations of abuse, but instead focus the case on the best interests of the child factors and why mom should receive primary physical custody. After all, that’s really what the judge wants to hear—what your strengths are, how you plan to work with your child’s father to coparent the children, and how you’ll make sure to provide for the children according to the factors.

But what if my child says that she won’t go for visitation with her dad? Do I have to force her?

This is such a tricky question! Obviously, in a case like this, you don’t want to force your child to go. You’re panicked, and you don’t want any further damage to happen. You already blame yourself for what has happened so far, and you want more than anything else to shield her from anything else that could possibly happen.

The way the judge looks at it, your child is a child until the day she turns 18. Though some judges will talk to children during custody cases, it’s not generally encouraged. Not only that, but the fact remains that a minor child is not capable of making these kinds of major decisions, like which parent should have custody or whether she will go to court ordered visitation. Kids just don’t have the maturity, wisdom, and understanding to make these kinds of decisions.

Factor 6 is also still at play here, so the court is going to look at your case and try to determine whether you unreasonably denied access to the child to your child’s father. Even though you only denied it because you knew (or suspected) physical, sexual, or emotional abuse, you still need proof to make those kinds of claims. If you don’t force the child to go to visitation, it may look like you unreasonably denied visitation. Not only that, but your child’s father would probably also say that you lied to the children about him and poisoned their opinion of him in an effort to maintain control and turn them against him. Of course, if you do force your child to go, you really don’t know what could happen.

I understand that this is a terrible, awful, unimaginable catch-22. It seems like you lose either way. Either you protect your child and you risk losing custody, or you send your child and you risk something terrible happening to her.

Who is going to help me in my custody case?

Ideally, in a custody case where abuse is an issue, both mom and dad would hire attorneys to represent them. Your attorney will represent you, negotiate with your child’s father (or your child’s father’s attorney, if he’s represented by counsel), and tell the judge about your case. It’s best if both parties have attorneys, because the cases tend to run much more smoothly that way.

Your child will probably also have an attorney called a guardian ad litem. A Guardian ad litem is a person appointed to represent the child’s best interests and, ultimately, make a recommendation to the court. Usually, the GAL’s opinion is incredibly important to the judge, so it’s important that you make a good impression on the GAL in the beginning. When you have the opportunity to speak to your GAL, don’t waste time bashing your child’s other parent. Use this opportunity to discuss your strengths and your willingness to do whatever it takes (including coparenting effectively with your child’s father) to serve the best interests of your child. Talk about what you think is in her best interests, and how you plan to address it, both now and over the long term.

Be careful, though. It’s best not to think of the GAL as your friend, because he’s not. He’s an attorney, just like your attorney and your husband’s attorney, who was hired to represent your child. He doesn’t represent you or your child’s father, and you should remember that and be honest but guarded in all your communication with him.

Your best source of help will definitely by your attorney.

Of course, every situation is different, and it’s hard to predict ahead of time how things are going to happen. You should talk to an attorney as soon as possible, before you make any decisions that could ultimately impact your case. For more information about custody cases or to schedule a consultation with one of our attorneys, give our office a call at (757) 425-5200.