It has happened numerous times in my career, that at the onset of a divorce action, one of the parties is accused of abuse, whether it be domestic violence against their abuse, or in some cases, child abuse. These allegations are brought contemporaneously with the divorce or separation filing, usually to get an upper hand on custody of the children. While it isn’t always the woman accusing the man of wrongdoing, my experience on these matters indicates that more often than not, it is the woman bringing the allegations.
It is of great concern and should be to you. Think carefully before your bring up such accusations, as I have seen cases where the person who is proven wrong in court or that the allegations are false, has lost custody of their children over it. It is not to be taken lightly.
First off, courts are sensitive to allegations of domestic violence. We see far too many tragic cases of people who have been seriously assaulted, battered or even killed by their spouse or ex spouse, to think anything else of a person’s allegations of domestic violence. Secondly, if the court is aware that a divorce or separation case was recently filed, or is pending, and now there are allegations of abuse, the court is going to treat those allegations with some trepidation, because just as attorneys have seen trumped up and sometimes false charges of abuse, so have the courts.
In addition to the risk of losing custody of children over trumped up or false charges, one also runs the risk of false swearing or perjury possibly being charged against the, if those statements have been made under oath in court or in legal court documents.
If there is a guardian ad litem appointed for the minor children, they are duty bound to investigate all allegations of domestic abuse, as it can affect both custody and placement orders.
What would a trumped up allegation of domestic violence look like? There would be no prior evidence of domestic violence between the parties; the police were not called, or if called, the police did nothing about it, including arresting the perpetrator. There are no physical signs of injury. There was no medical follow up either by going to an emergency room or seeing one’s own doctor. There are no witnesses. Someone simply says my spouse assaulted me, or choked me, or pushed me down. I have written numerous times about the important of calling the police and getting immediate medical care to document the injury if a person, man or woman, has been the victim of domestic violence.
What would a trumped up allegation of child abuse look like? there would be no prior evidence of abusive behavior between the parent accused and the children. The police were not called again, or if called, the police did nothing about it, including arresting the accused. Child protective services was called, and dismissed the case based on no evidence of abuse or neglect. There are no physical signs of injury to the child or if there is, it could be caused by other medical issues, having nothing to do with abuse. There is no follow up medical attention or emergency room visits for the child, or if there is, all of the tests and doctor reports don’t show that anything is wrong. There are no witnesses to the allegations of abuse. Just like domestic violence, it is extremely important if the children in any way were abused, to immediately call the police and follow up with getting appropriate medical attention for them.
The other piece of advice I will leave you with, is to call your attorney, if you have one, prior to making a rash decision and dialing the police, or child protective services, where there is serious doubts of whether abuse has occurred or not. In many cases, whether domestic violence or child abuse, the abuse will be serious and self-evident. You don’t need to call your attorney to ask them what to do, if your spouse punched you in the face and you have a black eye, or your spouse took a whip, pulled your children’s pants down, and whipped them so hard, they are bleeding. You call the police.
I am talking rather, about the not so obvious cases as discussed in this blog, where a person may have some “suspicions” of abuse. A perfect example might be where the children are returned after a visit with the other parent, and they notice some scrapes on their legs, and the other parent offers no explanation or story line as to how the child was harmed or injured. Before dialing 911 or CPS, talk with an experienced family lawyer first before you start assuming your spouse abused the child.
If you have questions about divorce, contact the experienced family lawyers at Karp & Iancu S.C. today, for a 100% confidential consultation.
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