Virginia Custody Cases Where There is Abuse

As a mother, you would do anything for your children.  It’s a cliché and yet, at the same time, it’s also incredibly true.  It’s something I’ve witnessed time and time again in my practice, talking to moms who are in the middle of fighting for, or are preparing to fight for, custody of their children.
In most cases, though that protective momma bear comes out regardless, custody is a relatively simple thing to determine.  Both mom and dad are reasonably good parents, though they were (for whatever reason) not particularly good at being married to each other, and both parents want to spend time with the children after divorce.  Though it’s hard for many moms to imagine having to share time with dad, it happens, and it’s usually not a bad thing.  Mom and dad both get time to themselves, and time with the kids.  Maybe it’s not a perfectly ideal situation, and maybe, given the option, mom and dad would change something or the other about their agreement or custody order.  Still, they’re able to work together to some degree for the sake of the children, and they co-parent successfully, putting the children’s needs first.
It’s difficult, but it’s normal, and, in most cases, it all works out to the semi-satisfaction of both parents.  That’s not to say, of course, that there aren’t times that are difficult, or that one parent or the other never slips up and makes a mistake.  It’s not all smooth sailing and happy co-parenting.  But there’s a shared goal and two parents to work towards it, and that is the raising of happy, healthy, successful, well-adjusted kids.
In a case where mom suspects abuse (whether physical, emotional, or sexual), though, things are a lot more complicated.
It’s not always that way, though.  In some cases, mom comes to me, convinced beyond any shadow of a doubt that something is wrong.  Dad is a bad guy, and there is some kind of abuse going on—whether it’s physical, sexual, emotional, or psychological.  There is danger to the child if he spends too much time with dad, and mom wants full custody, and maybe even supervised visitation.  It’s perfectly reasonable, she tells me, based on what the child is saying and what she knows to be true.  Certainly the judge will understand.  After all, she’s a good mother.  And the kid is saying strange things and behaving weirdly.  There’s all this evidence that just doesn’t add up, and no good mother can willingly send her child into a place where she’s not entirely, completely, 100% convinced that they’ll be safe.  Right?

Myth: If I suspect there’s abuse, I have to say something.  Like, yesterday.  I HAVE to protect my kids.

Well, I understand.  But the truth is that these abuse cases are incredibly difficult, and have to be handled carefully.  I say that to you now, and I’ve said it face to face to other mothers.  It’s never an easy conversation.  But I have to say it, because I know how the courts work, and I don’t want to take any steps that will end up hurting the child more.  I have to be cautious.  It’s my job.  In fact, my judgment is exactly the reason you want to hire me (or another attorney like me) to help you in your custody case.  Because I, and the other attorneys in my firm, help make sure moms get as much custody as possible, especially in cases where dad is abusive.
It’s not easy to say to a mom who tells me, with fear and tears in her eyes, that she’s terrified of what might happen to her child.  That she just wants to keep him safe.  But I have to say it to her, and to you, if you’re reading this.  Alleging abuse in court is dangerous.  Why?  Well, to put it simply, because judges are jaded.  They’ve heard it all before, and it’s not always the truth.  They hear, from desperate moms who will do anything to get and keep custody of their children, all sorts of things.  Unfortunately, some of them are lies.  Or, maybe, not even that—they’re fears, spoken out loud.  They’re half truths, or beliefs formed based on evidence that really isn’t all that scientific.  It’s not all meant to be malicious or misleading.  Or, at least, I don’t think it is, though I don’t really have data to back myself up here.  I think many moms get scared and say things, convinced that it’s true.  They know their kids are safe with them, and something just isn’t adding up.  They have to say something; their kid’s safety is at stake.
How do you tell a mom that, even though she feels, in the deepest part of her being, that her kids are in danger, she has to sit on that fear?  She has to keep it to herself and not say anything—for fear that speaking out loud about it will jeopardize her custody case?  It’s a difficult conversation.  It’s probably the conversation that I hate to have the most.  But, because of the way the court system works, it’s a conversation that I’ve had to have with moms just like you.

Truth: It’s usually best not to bring up any suspected abuse unless you have pretty concrete proof.

I’m not saying that it’s never okay to say something when you suspect abuse.  But, before you say anything, it’s really, really, vitally important that you have solid, concrete proof of your allegations—or, at least, you have something more than just a gut feeling that something isn’t quite right.
Before you start making allegations, gather as much information as you can.  Schedule an appointment and talk to an attorney, so that you can get an unbiased person’s opinion about whether the evidence you have is sufficient to warrant the kind of custody case you’re starting to think about waging against your child’s father.
I can hear your objections now.  How can you protect your child (or children) if you can’t SAY it?  How can you continue to send your children to visitation, not knowing whether they’re truly safe or not?
There’s no question it’s difficult.  No question at all.  (Have I told you how much I hate these conversations?)  I hear all your objections, and I feel you.  I’m speaking to you, though, not as a mother, but as a lawyer.  As a lawyer, I wouldn’t be doing my job if I didn’t tell you what the legal risks of your choices are.  You know, as a mom, what’s best for your kids.  I know, as a lawyer, what’s best in terms of your ongoing or future custody case.  I’m not YOUR lawyer—I mean, you haven’t hired me—so you don’t have to listen to me.  But it’s my opinion that moms make the best decisions when they have all the facts available to them.  I want you to have all the facts.

Truth: Sometimes, the best way to protect your kids is simply by ensuring that dad doesn’t end up with MORE time with them.

If you suspect abuse but can’t prove it, alleging abuse is really dangerous.  Judges are jaded.  They’ve seen these types of cases before.  They’re cynical and, without proof, they have to assume that you’ve concocted an elaborate ploy to take custody from dad.  They’ve seen parents (not just moms) do it before.  Without proof, a judge really can’t just take your word for it.
The risk is this: you allege abuse, and you can’t prove it.  The judge can’t assume that there is abuse and order supervised visitation, or sole custody to mom, without some sort of proof.  Best case scenario is that the judge does nothing; he orders custody the way he would have had you not mentioned possible abuse.  The worst case scenario is that he assumes you’re using this to get custody away from dad at whatever cost, and he awards custody of the kids entirely to dad instead—maybe with only supervised visitation to YOU.  Maybe he thinks you’re lying.  Maybe he thinks you’re a little crazy, and you’re imagining things.  Maybe he thinks you’re manipulative.  Maybe he thinks you’re a terrible role model for your kids.  Maybe he likes dad, and you come into the courtroom and sob hysterically, and he can’t help but feel like dad is a more solid choice.
Maybe the judge is wrong.  But once he has made up his mind, you can’t take it back.  And then you’ve lost your kids, and, without an expensive and time consuming appeal (which, let’s face it, you can still lose), dad has custody.
You need to know the risks so you can make the best decisions possible.  But the reality is that, in some situations, you can protect your kids better by NOT raising abuse allegations, so that you don’t risk dad winding up with more time than he has now.  It’s counterintuitive, but, unfortunately, that’s the way it is.

But why won’t the court protect the kids?  Isn’t it reasonable to act fast to make sure that no further harm comes to them?

You’re thinking like a mom again.  (Not, of course, that there’s anything wrong with that.)  But that’s just not the way the court thinks.
You can’t put someone in jail because they might have committed a crime, and you can’t take custody from a dad because he might have abused the kids.  There’s a whole judicial process that has to be undertaken and a finding has to be made that the abuse actually happened.  As far as the court is concerned, the parent/child relationship is just too important to take it away based on rumors or suspicions.  Proof is critical.  This is a way of protecting the child, too, because it ensures that the father/child relationship (which is a very important relationship!) can continue to grow and develop.  Without proof, why shouldn’t dad be allowed to facilitate that relationship?
(Imagine, for a minute, how you would feel if this happened to you.  If someone alleged that YOU abused your kids, and then the court, proactively, without a hearing, took your kids away.  That would be horrible, right?  That’s how the court feels, and that’s the reason it handles these things this way.)
With abuse cases, there’s no good answer.  I know it’s hard to hear.  These decisions are difficult to make; there’s no question.
If you suspect abuse, you should talk to an attorney as soon as possible.  Don’t make any decisions, file any motions, or accuse anyone of anything without talking to an attorney and coming up with a comprehensive plan.  For more information, to talk to one of our licensed and experienced Virginia custody attorneys, give our office a call at (757) 425-5200.

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