By: Stephen J. Plog
When starting the practice of law almost two decades ago, the issues of truth, perjury, and false claims were something I may have heard about in law school, or perhaps seen on TV or in a movie. Scenes of the witness on the stand or the accident victim faking injury to score the big jury verdict were as close to falsehoods permeating the judicial system as I might have seen. Fast forwarding to the present day, I have now had the ability to witness, firsthand, individuals blatantly lying to the court. Lies regarding child abuse in a custody case are perhaps more devastating than in any other legal arena.
As relates to custody litigation, the lies almost always relate to either abuse of a child or domestic violence. They are usually set forth in either an emergency motion to restrict parenting time (visitation) or in a complaint for a restraining order, whether directly in the custody case or as a separate county court protection order case. Sometimes, they might be lies told to a child and family investigator or during a parental responsibilities evaluation. Most Denver custody attorneys represent men and women on both sides of the equation. As such, I have represented many people, over the years, who have been falsely accused of heinous, hurtful, or disgusting acts. As their attorney, the challenging task is to expose the untrue allegations to the court. This is sometimes easier said than done and requires insight and knowledge into what courts are looking for and how to expose the lies. This insight comes with both experience and good analysis of the facts and evidence at hand.
In terms of the damage caused by false allegations of abuse or violence, there is the damage suffered by the accused and the children. In a broader sense, there is the systemic damage suffered by those who make truthful claims, who have either been abused or had their kids abused. Addressing the systemic issue first, each time outlandish, untrue allegations of abuse are exposed in a custody case, the judge hearing that case is likely to get a little more skeptical with the next abuse allegations, in the next case. Ultimately, false allegations of abuse have the cumulative effect of the party reporting the abuse having to work extra hard to prove his or her concerns to the court, with them almost preemptively being suspect for even raising the concerns. Denver child custody attorneys know that abuse allegations, or claims of domestic violence, will often be suspect right out of the gate. As such, we know that even raising an allegation is going to require proof in one form or another. The reality is that child abuse and domestic violence do happen. When people raise false allegations of these behaviors they give the system as a whole an underlying “boy-who-cried-wolf” complex. As such, legitimate cases sometimes end without justice or protection for victims. The level of scrutiny is raised.
The more significant damage suffered by parties or kids tied into false allegations is that oftentimes children are separated from a parent for days, weeks, or even months, while the false allegations are dealt with. When tied into custody cases, the allegations are often tied into physical or sexual abuse of a child, or perhaps a substance abuse on the part of one of the parents. In the restraining order setting, there will be allegations of physical abuse, generally hitting, pushing, or threatening. As courts will often take a better-safe-than-sorry approach, the accused and children may be separated for some time. With a restraining order, there will generally be a hearing within 14 days of the complaint being filed. However, oftentimes one party or the other will ask for a continuance, as they may need more time to gather evidence or prepare for hearing.
When a motion to restrict parenting time pursuant to C.R.S. 14-10-129(4) is filed, there will also be a hearing within 14 days of filing. Thus, the accused will be given an opportunity relatively quickly to refute the allegations. That being said, to a parent or child, 14 days can seem like an eternity. Of course there are also cases in which the allegations are so horrific that parenting time may be impeded for months. This can include supervised visitation being imposed while issues are looked at further. I have seen cases in which sexual abuse allegations are raised which take months and months to resolve and which include children being put through forensic interviews, custody assessments, and rounds of unnecessary counseling. Ultimately, kids end up confused and hurt.
One of the hardest things for those falsely accused of abuse or violence in a Colorado custody case is to remain patient. The court system is not always quick or efficient. Furthermore, not all false allegations are readily disprovable. Some require significant investigation by experts. Others are subtle, perhaps he-said/she-said scenarios. Even worse, in some cases allegations get raised not only in the custody case, but there is also a criminal case opened. Keep in mind that being charged does not mean someone is automatically guilty. When criminal charges are also pending, almost every criminal attorney we might work in tandem with will advise that the client not take the stand and/or to assert his or her 5th Amendment rights against self-incrimination. Even though that party may be able to testify contrary to the false allegations, the criminal attorney will be concerned that one wrong word or statement prior to the criminal matter being adjudicated could lead to problems in that case. Moreover, conviction in the criminal case could ultimately impact the custody case. These types of matters can take months to resolve, thereby leaving people in limbo.
So why are false allegations raised? They are generally raised because on party has the misguided belief that he or she is gaining the upper hand in the divorce or custody matter. The problem for the false accuser is that if their lies are exposed they run great risk of permanently damaging their custody case, in the present and for future issues perhaps years down the road. There are other legal and financial consequences they are often not even aware of when they first undertake putting pen to paper to lie.
In Part 2 of this article, I will discuss various ways to expose or deal with false allegations of abuse or violence, including what courts may be looking for to disprove those allegations. I will also address some of the impacts set forth in statute that might ultimately be suffered by the person making bogus claims of abuse. For now, I will conclude by letting readers know that it’s better to just tell the truth. Not only will lying make your case worse, but there will almost always be a family law attorney, just like me, whose ready to take on the challenge of exposing the lies in further of justice and our clients’ goals.