Update - Volume 13, Number 10, 2000

Child Abuse Allegations in the Midst of Divorce and Custody Battles:
Convenience, Coincidence or Conspiracy?

By Mary-Ann R. Burkhart¹

Child abuse allegations are difficult to prove.  The difficulties lie with the inherent secretive nature of the offense.  Most often, the only witnesses to the crime are the child and the abuser.  Additional dfficulties arise with elements of proof, oftentimes due to a lack of physical or scientific evidence.

Reaching the truth seems especially problematic when the allegation arises in the context of a contested divorce or custody dispute.  The adversarial setting muddies the facts, and potentially causes individuals to wonder whether the accuser (often the mother) is trying to protect the child or to sully the reputation of an ex-spouse and gain full custody.  Ensuing publicity may shift the focus from the child and foster the perception that false allegations are common weapons in divorce or custody situations.  The perception may even stretch to the belief that all allegations made in the midst of divorce or custody proceedings are false.

Such perceptions are uniformed and unsubstantiated by the studies.  For example, a study was conducted in 1986 in which over 9,000 families, appearing in eight domestic relations courts, were evaluated for sexual abuse allegations.  The study found that less than 2 percent of the cases involved an allegation of sexual abuse.²

Handling those child abuse allegations that occur in the midst of acrimonious divorce or custody cases often presents a special challenge for child abuse professionals.  Although the surrounding circumstances cannot be ignored, it is important to remember that the focal point should be the allegation of abuse.  Interpreting the credibility of the allegation, understanding the child's behavioral and physical symptoms, and taking advantage of available investigative tools will pave the way to a smoother prosecution.  Initially, however, understanding why the allegations would arise in the context of a custody dispute is vital for successful argument before a jury.

Why Allegations Might Arise in the context of Custody Disputes

Speculation as to why a mother or child would fabricate a story of child sexual abuse includes an hysterical or crazy mother raising allegations in order to hurt the father, or an angry, bitter mother who will stop at nothing to avenge the wrongs of her failed marriage.  From those perspectives, she is viewed as a bad mother for exploiting her child to prevail in the adversarial proceeding.  Little attention has been paid, however, to the reasons why actual abuse would be exposed at that time.

Oftentimes the separation of the parents creates opportunities for disclosure.  First, the dynamics of interfamilial sexual abuse are such that the non-abusive parent typically refuses to face the fact of abuse while the family is together.  Once the separation occurs, however, that parent has reason to become aware and to stop selectively perceiving what has been going on.

Second, a sexually abused child is often intimidated into silence by threats, including the abuser's warning that no one will believe her.  The child may feel freer to disclose once the abuser, and hence the threats, are gone.  The child may also feel at that time that the non-abusive parent will now be receptive to disclosure and she will be believed.

Another reason why children might feel freer to disclose after the breakup of a family is the feelings of responsibility often felt by children who are sexually abused.  Children often feel obliged to endure their role in the family dynamics due to a heightened sense of responsibility to keep the family together.  This pressure dissipates once the family splits.

Feelings of loyalty may also come into play.  Specifically, although the child is harmed by the sexual abuse, he may still feel torn by loyalty toward his abuser.  The child is likely to desire affection from the parent and comply with the abuse.  However, the separation of the parents is conducive to disclosure because the original scenario of abuse is disrupted.   When the child is apart from the abuser, his emotional conflict is less looming.³

The Need for a Thorough Assessment and Investigation

The key to any successful child sexual abuse prosecution is a thorough assessment of the child's statement and a thorough multi-disciplinary team investigation.  Since the crime of sexual abuse is a private one, and the child is the only eyewitness, proof may turn on the child's testimony.

Determining whether a report of sexual abuse is valid is a process of evaluating available information and evidence.  Although corroborating evidence can be found in many cases of child abuse⁴, the child's statements and testimony are typically the most significant evidence.

Interpreting the Credibility of the Allegation

As with all state witnesses and pieces of evidence, there needs to be a determination made of the credibility of the child's statements.  Following are some suggestions for guidelines in making such a determination.

Detail:  The nature and amount of information given by the child could be extremely convincing.  A young child who has been sexually abused will often demonstrate an accurate knowledge of sexual anatomy and functioning beyond the norm for her age and background.  Additionally, sensory detail information (e.g., taste, odor or feel of semen) will eliminate the suggestion that the child has received sexual information from sources other than the actual sex act.  Finally, the use of highly personalized details will lend credence to her statement (e.g., how the act felt).  A child's inability to provide any such detail may indicate a lack of abuse.  Before jumping to that conclusion, however, be sure that the child is not suffering from fear, embarrassment, or a lack of ability to understand the interviewer.

Words Used:  The words used by the child should be age appropriate.  For instance, a five-year-old's description of sexual abuse such as "My daddy peed on my tummy" is graphic and appropriate for her age.  In contrast, the same five year old saying "My daddy sexually assaulted me" would raise suspicions of coaching.  Make sure you know terms normally used by the child to describe anatomy.  Some children are taught proper names such as penis, vagina and anus at an early age.  If your child uses language such as "sexually assaulted", "molest", or other such terms, be sure to review prior statements of the child, as later statements may include such legalistic terms that the child hears from others.

Child's Manner and Emotional Response:  Emotional responses such as crying and shaking are more difficult for children to manufacture and may be an indication of reliability.  If a child displays an unusual emotion, however, do not assume the child is not credible.  In one, case, a child giggled throughout the interview.  This puzzling behavior became understandable when investigators learned that giggling was how the child displayed anxiety.  Indeed, the suspect who confessed to the crime noted the girl giggled throughout the rape.

Content of Statement:  Does the child's allegation make sense?  Is she telling you something that is physically impossible?  elicit the details you can and then use common sense.  The following factors can be indicative of credibility:

Description of multiple events over time, particularly where the suspected offender is known to and has a relationship with the child;

Description of a progression of sexual activity conducted over a period of time rather than in a single incident, especially if occurring within the child's family;

Elements of secrecy indicating an express or implied understanding between the offender and the child that she was not to tell; and 

Elements of coercion indicting a misuse of the power and authority of the adult suspect.

Existence of a Motive to Fabricate:  Your evaluation should also take into consideration what motives, if any, the child might have to fabricate.  Keep in mind that when children lie, it is normally to avoid trouble rather than create it, and disclosure of abuse typically has many negative consequences.  Take special note of any expressions of affection the child has for the abuser.  A child who expresses affection toward the abuser or concern for his fate is providing evidence of her lack of motive to lie.

To Whom Did the Child Disclose?  Especially in the case of acrimonious divorce or custody matters, this factor could be among the most important.  Did the child disclose to a third party such as her therapist, a trusted teacher or friend?  By disclosing to someone outside the home, the likelihood that the allegation is fabricated is substantially diminished.  If, however, disclosure was made solely to the child's mother, and the child, and the child is extremely hesitant to discuss the disclosure with anyone else, the allegation should be more carefully scrutinized.

Meeting and Defeating the Untrue "Conspiracy" Defense

In spite of the foregoing facts, the goal of defense counsel is to have the jury believe that child abuse allegations that arise in the midst of divorce or custody proceedings are rampant and primarily false.  The studies show both of those perceptions to be untrue.  Explaining to the jury exactly why the allegations arose during this volatile time period may help aid in the jury's understanding as to the timing of the disclosure.  It is during this time period, once the perpetrator has left the home, that the child feels safe enough to disclose any abuse taking place in the home.

If disclosure was made to someone outside the home, the defense argument of "conspiracy" would fall severely short, for it would require that not only the mother and child be co-conspirators, but the trusted teacher, therapist or neighbor as well. The defense becomes more unlikely with the entrance of each neutral third-party.

To contend that a young child involved a teacher or other neutral party in a conspiracy of false accusation is so untenable as to border on the absurd.  Under this scenario, the child would have to realize that the teacher, being a mandated reporter, would be required under law to report the allegation to the Division of Social Services, or a like agency.  The child, further, would have to disclose with the knowledge that the Division of Social Services, after responding to the allegation, would also be required to disclose the allegation to law enforcement, who would conduct a joint investigation and then turn the case over to the prosecutor's office.  Such a level of sophistication is highly unlikely in a young child.

Conclusion

An Allegation of child abuse arising out of a divorce or custody situation should be taken seriously and investigated thoroughly.  It is wrong to assume that such an allegation is untrue or can't be proven.  Although an allegation arising during a custody situation may create unique problems of proof, these children are no less deserving of protection.

¹ Senior Attorney, APRI's National Center for Prosecution of Child Abuse
² AFCC/RESEARCH UNIT, ALLEGATIONS OF SEXUAL ABUSE AND CUSTODY AND VISITATION CASES:  AN EMPIRICAL STUDY, REPORT FOR NATIONAL CENTER ON CHILD ABUSE AND NEGLECT (1988); Nancy Thoennes & Patricia Tjaden, The Extent, Nature, and Validity of Sexual Abuse Allegations in Custody/Visitation Disputes, 14 CHILD ABUSE & NEGLECT 151 (1990).
³ For further discussion on this issue, see Allegations of Child Sexual Abuse in Custody Disputes:  Getting to the Truth of the Matter, by Meredith Sherman Fahn, FAMILY LAW QUARTERLY, Volume XXV, Number 2, Summer 1991.
⁴Victor Vieth, When a Child Stands Alone:  The Search for Corroborating Evidence, UPDATE, VOL. 12, NUMBER 6, 1999.