How Can Someone Prove That Their Child Is Being Abused?
There are several ways to prove child abuse. If there is evidence of physical injury to the child, it can be documented, such as bruises, cuts, or medical records showing damage to a child. However, proving what caused the injury is another matter. Since physical abuse does not require an injury, what was said and by who, both during the alleged abuse and afterwards, becomes an issue. If a perpetrator admits what they did, their admission becomes evidence of abuse. Oftentimes a perpetrator will make admissions to law enforcement, or to family or to friends. Even more commonly, the child will disclose the abuse either to DCFS, if DCFS investigates, or to therapists or other third-party professionals. One of the most frustrating circumstances “non-offending” parties have is when the child discloses the abuse to them, but they’re unable to use those statements because the statements are “hearsay.”
That said, if the child is recorded describing the abuse, those recordings or transcripts of those recordings may often be used. However, if a parent intentionally interrogates the child to obtain a recording of the child disclosing abuse, they are likely to make many mistakes in how an interview should be conducted. This will damage their own credibility, and the credibility of the child. Children are impressionable depending on their age and maturity, and if a parent interrogates a child about the abuse they may do so in such a way that plants the idea of abuse in the child’s head. Additionally, a child might receive a “secondary gain” from describing abuse. For example, they might enjoy the attention they receive from disclosing abuse. They might also recognize that the interrogating parent wishes to hear about it and they wish to please a parent.
It is more advisable to have the child interviewed by DCFS, by a therapist who is trained in these kinds of interviews, by a Guardian ad Litem (“GAL”), or by other trained professionals who know how to interview the child regarding abuse, without planting the idea of abuse in the child’s mind or otherwise harming or tainting the evidence.
However a disclosure from a child is obtained, whether it be a statement to a trained professional, or a recording, or a text message or a letter, that evidence can be used to support a motion for temporary orders, a protective order, or one of the other types that we discussed. Each case is different, and the best methods to obtain evidence regarding the abuse will need to be determined on a case-by-case basis, using the assistance of an attorney who is experienced and trained in collecting that type of evidence.
Another method by which evidence of abuse can be obtained is through the “discovery” process. You’ll see on my website, there are descriptions of what the discovery process is and how it can be used to obtain additional evidence. It can include things like interrogatories, requests for admission, requests for production of documents, depositions, and use of expert discovery.
How Can One Defend Against False Allegations of Abuse?
Regarding how to defend against false allegations of abuse, that is essentially the flipside of proving abuse. Often the same methods that are used to demonstrate that abuse occurred can also be used to demonstrate that it did not occur. Additionally, a person defending against allegations of abuse has an advantage in that it’s not their burden of proof to show that abuse didn’t happen, it’s the other party’s burden to show that it did happen.
If you have an attorney that is trained and experienced in defending against abuse cases, that attorney can help hold the party alleging abuse to their burden of proof, as well as pointing out inconsistencies and holes in the other party’s evidence.
How Can An Allegation Of Abuse Impact A Child Custody Case?
Often a parent will attempt to use false allegations of abuse to obtain an initial advantage at the beginning stages of custody litigation. The usual advantage they seek is temporary custody while the abuse allegations are being investigated. If the accused parent fails to defend themselves vigorously at this stage, the falsely accusing parent may obtain custody on a temporary basis, which will then develop a new “status quo” for custody. “Temporary orders” often having a way of becoming permanent, or a way of changing what normally would have been the custody arrangement.
For example, lets say a father had been the primary caretaker of the children, and the mother was the primary breadwinner. They separate, and the mother makes allegations of abuse towards the father and files orders to get temporary custody. If she is successful, and a sufficient amount of times goes by before permanent custody is determined, that mother may claim that since she has had custody for nine months, that new arrangement has become the “status quo,” and the Court shouldn’t rock the boat by making a change. She can argue that the children should not be returned to the previous primary caretaker, the father, because the children have been with her for the last 9 months.
Because of this, a parent who is being falsely accused of abuse should vigorously and promptly defend themselves against those allegations. They should also do so thoroughly, so as to not endanger their temporary contact and visitation with their children during the pendency of the case.