Sexual abuse cases are some of the most difficult we see in our practice. Well, really, all custody cases are difficult, as you can probably imagine, because there is so much involved. When it comes to regular divorce cases, there’s a limit to the amount of money, time, and frustration people will expend on a particular asset—even one as valuable as, say, the marital home.
When there’s custody involved, though, it’s not possible to put a dollar figure on the case. And, besides that, emotions are running incredibly high. When a mom comes in to us to talk about a custody case, it’s usually because she’s incredibly concerned about something very serious.
The other day, I met with a woman in a terrible position. She told me that her husband had been cheating on her for their entire twelve year marriage. The woman he predominantly cheated with was an exotic dancer who took him to a variety of different “clubs” where he (and she) basically selected from a number of available partners and then participated in group sex. She said her husband was a diagnosed sex addict with narcissistic personality disorder. She told me that she was afraid her husband would never let her – or their children – go. At least, not without a knock down, drag out type of fight.
On top of that, her son had started to display some alarming behavior. Over time, mom was becoming more and more concerned that something between father and son just wasn’t right. Because of her husband’s narcissistic tendencies and the sex addiction, she knew that her children were observing some unusual behaviors while in his care. She tried to enlist some help from a private investigator, but the private investigator was unable to gather the type of evidence she needed to prove inconclusively what was going on. Her husband was proposing week on/week off custody, even though he planned to move to the couple’s vacation home in Texas, where he planned to live full time. (Since he was a pilot, he thought this was more than reasonable.)
Her attorney was urging her to go ahead and agree, in mediation, to her husband’s offer—which even allowed him to take the kids wherever he wanted, without notice to her. His reasoning? After she agreed to everything (including how the property would be divided), she could petition the court to modify her custody and visitation arrangement.
For a lot of reasons, this raised some serious red flags for me. She came to see me because, as she put it, she wanted to run her attorney’s strategy by me and make sure that I thought it was a good idea. So, while I worked through all my feelings about her attorney’s idea, I started discussing with her how custody in Virginia works.
Basically, custody in Virginia (much like custody in almost every other state) is based on the “best interests of the child” standards. What exactly constitutes the best interests of the child can vary a little bit from state to state, but the general premise is the same. The court’s goal is to determine what custodial arrangement is in the child’s best interest, based on the standards provided to it by statute. In Virginia, there are ten best interests of the child factors (and I can’t emphasize enough how incredibly important they are):
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
In a custody case, the court will consider all ten factors in making a decision. All of the factors are important, but, obviously, some play out differently than others.
In my experience, when it comes to cases where sexual or physical abuse is an issue, the factor that works against moms the most is factor number 6 – “the propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child”. In other words, obviously, the court wants to see that you encourage your child’s relationship with his father.
You’ve probably heard, too, of parental alienation. It’s a big buzzword in custody cases these days, and it’s one of those things that dads automatically leap to in cases like this. If you restrict his access to the child, he’ll say you’re alienating the child. You’re saying and doing things that are causing his relationship with the child to suffer. It’s not justified—of course it’s not—and you’re actively preventing that relationship from developing the way it should. That feeds right in to factor number 6, too; in fact, it’s an argument that many, many dads use to advocate for a complete change in custody.
Custody is never pre-emptively taken away from a parent, either. That’s a hard thing for a mom to understand. The court can’t protect the baby BEFORE something bad happens; dad actually has to have a chance to screw up (and do it) before the court can get involved. It makes sense if you think about it in reverse. Imagine that dad said something totally fictitious about you, but the court listened and took your child away. You hadn’t done anything wrong, but it was difficult for you to prove to the court that you hadn’t. In an effort to “protect” your child, they took her away from you. …It seems crazy when you think about it that way, doesn’t it? The court, simply put, really won’t interfere with your right to parent your child without pretty absolute, concrete evidence that some kind of abuse took place.
What kind of evidence are we talking about? In most cases, a substantiated report from Child Protective Services, or the testimony of a therapist. We’ll use pictures and other support evidence to help our argument, but pictures alone aren’t sufficient. Could we ask the child? Sure, we could—but are you willing to bring your child into court and risk further psychological and emotional damage? Most of the time, we don’t involve the child. (I don’t want my client to be perceived as the mother who doesn’t care about the damage to the child and, likewise, I don’t want to be perceived as the kind of attorney who thinks that it’s fine.)
Sexual abuse cases are hard. And, like in this case, there often isn’t enough evidence. So, what’s a mom to do? It’s really difficult! We have to weigh the possibility of damage if we bring in allegations that we can’t prove, and then face a subsequent allegation from the opposing side of parental alienation. Would the parental alienation claim be enough to warrant a change in custody? That’s the constant gamble. Swallow your suspicious (for now, at least) just to keep visitation at a minimum—or go for it, and risk losing it all (and leaving your children in dad’s care even MORE)? It’s definitely a very fact specific determination, and not one that you can reasonably expect to make just because you’ve read this article.
If you suspect sexual abuse, you’re going to want to talk to an attorney as soon as possible to weigh the pros and cons and come up with a plan of action in your case. (Keeping in mind, of course, that an attorney—even a super experienced one who has practiced in your local court for years and years—can’t predict ahead of time the way a judge will rule, and there’s always a level of risk involved.)
It’s hard to decide how to balance your overwhelming desire to protect your kids—even from their father—and maintain custody as much as humanly possible.
In this particular case, too, there was another issue—one that she, not being an attorney, wouldn’t know to look out for. Though custody can be determined and then modified later, based on a material change in circumstances, as she already knew, you can only go so far as the entry of the last order at your modification hearing.
Once you reach an agreement, the court assumes that you know all the facts from before you reached your agreement, which led to you agreeing to what you agreed to. In her case, we’re talking the sex addiction, adultery, narcissism, and so on—so that if she agreed to something, planning to modify it later, under Virginia law, she would then be unable to raise those issues.
If you think about it, it makes sense. You can’t go back and re-hash the same issues over and over again, hoping that a different judge in a different court at a different time will give you a different result. You have one shot to reach an agreement on your situation based on the facts up until that point; if you come back to modify later, you modify based on the new or changed facts, but you can’t reopen the old issues (at least, not without new information).
In her case, this was a landmine type issue. If she agreed to his proposed agreement now (which she really wanted to do just so she could get out—totally understandable reasoning), she’d lose a lot of ammunition for her custody case later.
My point? Make sure that, when it comes to your custody case, you consult with an experienced Virginia custody attorney so that you’re sure you know all of the possible landmines you could face. It’s easy to miss something (even something pretty big, like this!) that could hurt you later on.
Talk to an attorney. What can it hurt? At least you’ll have the information you need to make these big decisions.
For more information, or to schedule an appointment with one of our divorce and custody attorneys, give our office a call at (757) 425-5200.