Custody Preparation for Moms

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Page 4

Custody Cases
Protecting Children from Sexual Abuse
© 2003 by Arlaine Rockey, Attorney at Law[1]

The Custody Evaluation Continued

The psychologist should also meet with or interview the child, although some say they do not want to subject the child to yet another interview. With your attorney’s approval as to the legality in your state, you might want to secretly tape your interviews with the psychologist in case there are discrepancies in what you reported when the custody evaluation is finished. You should be careful as to what you say to the psychologist, but at the same time, you have to be honest and remember that on the tests, some questions that are slighty negative about yourself are asked and it is normal to admit certain negative things about oneself. If you deny these things that most people would just admit, it will make you look strange, like you are trying to make yourself appear better than you are. You need to answer honestly and try not to make youself look better or worse because that finding on the tests is just as, perhaps more, damaging as having a mental disorder because it goes to your credibility.

After the custody evaluation is finished, you and your attorney need to review it, first to see if the psychologist got the facts straight. If there is a glaring problem, your attorney can write letter to the psychologist setting out the discrepancies. Your attorney also should take a deposition of the custody evaluator if the outcome is not favorable to your position. Your attorney should investigate the custody evaluator’s background, including his or her resume, books or articles written, conferences at which he or she presented , and any affiliations with certain groups that would show a bias, such as father’s rights groups. Your attorney should subpoena the custody evaluator’s complete file and review its contents, preferably prior to, or at the deposition, including all “collateral” statements, which are those given by people who you and the abuser named as supportive witnesses, all statements and questionnaires of, and interview notes about, you and the abuser, which may include audio or video tapes, and the results of all mental health examinations. Your attorney should be skilled and meticulous about deposing the custody evaluator in order to find out in advance how the custody evaluator will testify at trial and what holes there are in the custody evaluation.

Hiring a Sexual Abuse

Expert If the psychologist who did the custody evaluation did not adequately address the issue of sexual abuse or found that there was no sexual abuse, depending on the recommendations in the custody evaluation, you might want to hire another psychologist who is an expert in child sexual abuse to critique the custody evaluation and to do another evaluation solely on the issue of sexual abuse. You need to understand that your child’s therapist cannot be this evaluator of sexual abuse because it would be a violation of the psychologists’ code of ethics because it is considered acting in a dual role. You need to have a separate psychologist to be your sexual abuse expert to evaluate and form a professional opinion as to whether the sexual abuse occurred. You should definitely have this psychologist interview the child. If your attorney wants your sexual abuse expert to be able to interview the alleged perpetrator, your attorney will probably have to file a motion in the case; however that is a tactical move and must be taken with caution. Do not expect the Court to allow it once a custody evaluation has already been done, which is why it’s best to choose a custody evaluator who has experience in sexual abuse in the first place. Furthermore, you need to know that there is no mental test that can tell for sure if someone is a sex abuser. Sexual abuse is proven from a constellation of evidence. Even if you hire a sexual abuse expert, there is no guarantee that the expert is going to arrive at the conclusion that you desire; so, you might not want to tip your hand that you have such an expert until you have to do so. You can expect the other side to want to depose your sexual abuse expert, and you will have to pay to obtain a copy of that deposition even though you did not take it.

The Abuser’s Testimony

Your attorney will also want to request discovery from the alleged perpetrator and to take his deposition. You want to have the abuser’s version of the facts on the record as soon as possible before he knows what sort of evidence you have. A strategy your attorney might seriously want to consider, in addition to taking the abuser’s deposition, is calling the abuser as your first witness at trial. This strategy takes away the opportunity for the abuser to change his story according to how other witnesses testify at trial. Since the custody case is a civil trial, if the abuser takes the Fifth[7] and refuses to testify, the Court can infer that he is in fact guilty of the thing for which he took the Fifth.

The Child’s Testimony

There are many ways to get the child victim’s statements into evidence at trial without having the child testify at trial. Some have been discussed above, such as the child’s statements made to doctors or therapists in aid of treatment or the child’s statements made to parents or other caretakers who then take the child to a doctor or a therapist based upon what the child said. Another exception to the hearsay rule is an excited utterance, which means that if the child says something at or soon after the time that something traumatic happens and the child is upset at the time it is said, then the child’s statement can be testified to by someone who heard what the child said. Depending on the facts of your sexual abuse case, you might need to have the child victim testify. To minimize trauma for the child, you and the alleged perpetrator could agree to allow the judge to talk to the child in Chambers alone. However, a better strategy is to ask that just the lawyers and the judge be present and that the courtroom be cleared with even the parents having to leave. This method allows your attorney to direct the questioning on direct examination and also insures that the testimony is on the record, which is important in case your case ends up being appealed.

Other Witnesses at Trial

There are many other witnesses that can be called for trial depending on the time allowed for testimony. Some of these I call professional witnesses: doctors, psychologists, therapists, police officers, teachers, and CPS investigators for example. If there are medical records, sometimes these can come into evidence either by consent or with only brief testimony from the records custodian unless something needs to be explained, in which case you may need to subpoena the doctor. If there is actual medical evidence of sexual abuse, for example, tears or a sexually transmitted disease, you may need to have the doctor testify and explain how that medical evidence would tend to show that sexual abuse occurred. You might also need medical personnel if the child’s statements in aid of treatment are not written clearly in the medical records.

You should not forget that you also have to present basic evidence that you are a fit parent and that it is in the child’s best interests to be in your custody. Besides all the evidence above, you should choose two or three non-relative witnesses who have witnessed you taking care of the child and who will testify that you are an excellent mother. Friends, neighbors, your child’s friend’s parents, babysitters, daycare providers, housekeepers, and sometimes church members are possible witnesses. For each possible witness, you should write down for your attorney what you expect that witness to say, the witness' name, address and telephone numbers. Your attorney may want you to contact these witnesses first. A lot of times when it gets right down to court time, people do not want to get involved. Remember, a subpoena can be used to force someone to testify and also to get someone an excuse for work, but if that person is adamant about not testifying, you should probably look somewhere else.

Telling and showing the Court that you have a support system of friends, neighbors and relatives who are willing to help you in a crunch with your child is very important. You should choose at least one relative to testify, preferably a grandmother or aunt to tell about how your family supports you and has been and will be there for you. It is especially important when there are allegations of sexual abuse if you are asking for supervised visitation for the abuser because having any child basically 24/7 is stressful. All parents need help every so often.

Your Testimony You probably do not want to hear this bit of news, but your testimony is probably the most important testimony in your custody trial. The reason is that, first of all, when it comes to sexual abuse allegations, you are probably the only witness who can prove most of your case. Your credibility, meaning believability, is absolutely key. You also have to appear to be loving, smart, concerned, and nurturing, and moreover, not appear to be vindictive, lying, manipulative or evil. Mothers still have a more difficult time in custody cases than fathers when the fathers contest custody.

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[7]“Taking the Fifth” refers to taking advantage of the Fifth Amendment to the U.S. Constitution that says that a person does not have to testify against himself regarding any crime he might have committed.
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[1]This article may not be reproduced or republished anywhere without the author's written permission. Email ARockey@aol.com
[*]This article is general legal information only. It is not legal advice for your case. You should talk to an attorney about your specific case before you implement any of these strategies.
[*]If one child is being sexually abused, all your children, to whom the abuser has access, are at risk of being sexually abused.
[*]Do not give this information to anyone else before you check with your attorney first. In fact, you should consult with your attorney about everything you do and say to anyone else involved in the case to make sure you are doing the right thing for your case.

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CPFM: This article is reprinted on this website with permission from the author. All rights belong to the original author. This article was retrieved in it's entirety from the author's website URL http://members.aol.com/afoggyday/page8.html on 7/29/2003.
WARNING: DO NOT USE THIS URL AS A LINK IN YOUR WEBSITE - make any links to the original material at the author's website. Your rights to reference this material are limited to the original author's guidelines.


 

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