Addressing Sexual Abuse in Child Custody Cases

One of the most difficult issues that we tackle as family law practitioners is the issue of child sex abuse accusations in child custody proceedings. These accusations typically involve the child’s mother expressing concerns that the child’s father is inappropriately touching and/or assaulting the child and, as a result, visitation and/or custody should be ceased/modified and criminal charges possibly brought. When this occurs, an investigation is inevitably launched in order to determine if there is any evidence of abuse.

While one notorious study made the claim that, when mothers allege sexual abuse by fathers, the fathers are favored in deciding in custody decisions and mothers are more likely to lose custody, it is important to note that this study relied exclusively on reported case opinions, most of which were appellate cases, while most family cases are not reported, leading to skewed results (amongst making what some have  considered to be a number of other notable mistakes in reaching this conclusion).

In reality, while the deliberative process is always subjective, if the accusing parent can present their case and a good faith argument that they believe their child has been sexually abused by the other parent, even if the evidence that is unearthed by investigators ends up being unfounded, the court does not necessarily construe this as providing false information to the court and automatically consider it to be in the best interest of the child to award custody to the accused parent (or the father). In these cases, the accusing parent (i.e. the mother) will simply be deemed to have acted appropriately and reasonably based on their beliefs at the time of the allegations.

How Evidence Is Gathered & Weighed

In addressing allegations like these in custody cases, courts take into account the relationships between the parties, any potential undue influence by the accusing parent, and the assessments that experts assigned to the case provide after interviewing the child. Sometimes investigators may decide that they do not have enough evidence, and as a result, the charges are “unfounded.” This is not a guarantee of innocence, but rather, that there is not enough evidence to support the complaint.

Just as the court considers any evidence of sexual violence and child abuse in evaluating what is in the best interests of the child, any evidence that a parent has knowingly provided false information to the court regarding sexual violence and child abuse is also taken into account in this evaluation, pursuant to Florida law. In these cases, the accused parent may also make the argument that they should have full custody because the accusing parent is trying to turn the child against them, thus permanently damaging the relationship that they have with the child. While it is possible that custody could be awarded to the parent who has been accused of abuse where there is no evidence of abuse, as the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship is a factor that is taken into account in deciding on what is in the best interest of the child, pursuant to Florida law, if there is any evidence of child abuse, whether or not there is a conviction, the court considers this as evidence of detriment to the child.

If You Have Concerns That Child Abuse Could Be an Issue in Your Child Custody Case, Contact A Florida Family Law Attorney with Experience

There is no question that these issues are extremely difficult and painful, regardless of the specific circumstances involved. As attorneys representing clients who are concerned about the wellbeing of their children, it is our job to gather initial evidence, as the court will, in order to make an assessment, as the court will, in order to prepare our clients for what to expect and ensure that they are placed in the best position possible in their custody case.

West Palm Beach family attorney William Wallshein is experienced in legal issues related to both child abuse and custody issues. If you have any questions or concerns about these or any other family law issues, contact our office for a free consultation to find out how we can help.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html

forbes.com/sites/patriciafersch/2020/08/21/are-women-more-likely-to-lose-custody-if-they-claim-their-child-has-been-sexually-abused-by-the-father/#4a2ccb875601

nationalparentsorganization.org/blog/24443-no-definition-of-abuse-and-inaccurate-one-of-parental-alienation-flaw-study

https://www.wallsheinlaw.com/what-do-divorce-lawyers-do-exactly/