The Nuclear Option: How Men’s Constitutional Rights Are Obliterated in Family Courts

There is a very simple trick, used all too frequently in family courts, that will almost always ensure the immediate elimination of a man’s constitutional rights. Read more to find out if it can happen to you.

In acrimonious divorce and child custody disputes emotions are tense and tempers flare. Buoyed by litigious attorneys, each side engages in strategic maneuvers to gain the greatest legal advantage.

 

Sometimes a parent, fearing a loss of control or custody over a child, crosses the ethically acceptable bounds of legal warfare. An unfortunate but all too frequently used tactic by mothers is to accuse the father of sexually molesting their child. The mere accusation is sufficient to strip the father of all his custody rights and launch a criminal investigation. Even when no evidence is found to substantiate the allegation, family law courts typically “err on the side of caution” and award full custody to the mother. While national statistics reveal that the majority of all child sex abuse reports are legitimate, when such claims are made by a mother in the context of custody litigation, an estimated 77% of allegations are determined to be unfounded (Tong, 2002).A false child sex abuse allegation made during child custody litigation is a destructive legal stratagem.

Throughout the world, child sexual abuse is considered the ultimate crime. Not even murder generates the kind of raw emotional reaction that results from the sexual abuse of a child. Society acknowledges the innocence of children and responds to child abusers with extreme prejudice. The power of the accusation alone is often enough for public opinion to impeach the character of the alleged child abuser and guarantee legal victory for the mother. According to Jeffery M. Leving (1997), a leading father’ rights attorney, “the use of false sexual abuse allegations to win custody suits has become almost a standard tactic among disturbed mothers and unethical divorce lawyers” (pg 148).The accused may spend years rebuilding his reputation from the monumental damage caused by the accusation.

To investigate the effect of a false child abuse accusation, a child custody survey was conducted; the group was evenly divided between males and females. A scenario was presented in which a divorcing couple was contesting custody of the children. It was stated that both parents were fit and proper. The question posed regarded what custody arrangement would be in the best interests of the child. An overwhelming 94% of respondents indicated that joint legal and physical custody, shared between parents, would be in the child’s best interest, with 78% of respondents indicating that a 50/50 time sharing agreement was appropriate.

Another scenario was presented. In the second scenario the father has been accused by the mother of sexually molesting their child. The Department of Social Services and the police conducted an investigation and concluded that there is insufficient evidence to determine whether or not the father committed sexual abuse. The question of custody is again asked. As a result of the unsubstantiated accusation against the father, 79% of the same respondents stated that sole legal and physical custody should be granted to the mother. Only 15% of respondents felt that the father should be permitted a minimum of 50% visitation with the children. In the final survey question regarding the respondent’s personal opinion of child molesters, 42% stated that they should be “locked away for life” and 48% responded that they should “burn in hell”. Why do so many mothers file false sexual abuse allegations during custody cases? They work. False accusers in this type of case rarely face prosecution.
The judicial system, likewise, responds to alleged child abusers swiftly and aggressively.

Unfortunately for many falsely accused fathers, truth and justice are often niceties which are frequently ignored. Leving (1997) writes, “Based on well-meaning ‘better safe than sorry’ policy, abuse investigators often accept an abuse charge as fact and consider the accused abuser guilty until proven otherwise” (pg 150).This is a significant problem. The US Constitution guarantees that accused persons are to be treated as innocent until proven guilty. In this type of case, however, constitutional safeguards are abandoned. The burden of proof falls upon the accused to prove a negative, or, to conclusively show that an alleged event never occurred. This reversal of constitutional jurisprudence sets a dangerous precedent and ensures the conviction of many innocent men. The destructive power of a false child abuse allegation has been termed “the nuclear option” by law professionals (Tong, 1997).Once this nuclear bomb is dropped, all hope of civil reconciliation is lost. The custody battle escalates into a bitter war.

The prevalence of false accusations is a matter of debate. Disagreement over the proper ratio of false abuse statistics may range anywhere from 20% to 80%.It can be extremely difficult to correctly track the ration of true to false accusations because of the problem in identifying the intent of the accuser. In some instances a mother genuinely believes abuse has occurred. In other instances the mother may not be sure and simply doesn’t know what to do other than to file an allegation of abuse. However, when one considers all factors, including the number of retracted allegations, recantations and the preponderance of cases proven to be dishonest, a fair estimate settled upon by many studies is an average of 77% (Brennan & Brennan, 1994).

False reports of sexual abuse against children are often first reported to Child Protective Services (CPS) or some other governmental social service agency. A safety assessment is conducted by a CPS or social worker (Ney, 1995). During this brief assessment standard questions are asked of the mother regarding the alleged event. At the end of the assessment, even if no proof of wrongdoing is presented, procedure requires the social worker to recommend that full custody be given to the mother as a safety precaution until a full investigation is concluded. This assessment is included in an official complaint and presented to a district court judge. The judge will typically grant an Emergency Ex-Parte Order giving the mother temporary sole custody of the children and restrain the father from having any contact with his children, even when no additional evidence beyond the mother’s word exists. A hearing date is set and the legal battle begins.

The mother gains immediate advantages over the father. First, by giving the mother full custody of the children the court is setting a precedent that will be hard for the father to overcome. Most family court judges believe in maintaining the status quo, and subsequently order the children to continue residing with the mother rather than changing the children’s residence to that of the father (Hardwick, 2004).A second advantage for the mother is that the children are unable to communicate with their father and a process of alienation begins. The more time that passes without contact, the greater the alienation. During this period of alienation, a child may be coached by the mother to support the allegation against the father.

After the Emergency Ex-Parte Order has been granted, an investigation of the allegation begins. As part of the investigation, the child is examined by a medical doctor for physical signs of sexual abuse. It is rare that evidence is discovered. The child is also seen by social workers who use items such as anatomically correct dolls to try to encourage the child to talk about what happened. Even when the child states that nothing happened, the investigation continues.

After a series of interrogations, which often serve to reinforce the false story in the child’s mind, the child may eventually say something or play with the dolls in such a way as to cause the social worker to suspect abuse (Tong, 1992).As part of this ongoing investigation by both CPS and local law enforcement, the reputation of the father is constructively destroyed by the investigation. Family relationships become strained. Employers tire of granting time off work to accommodate the father’s frequent court hearings. Social relationships are damaged, often never to be repaired.

The very process of being investigated causes many men to give up and grant the mother everything she wants from him. Sadly, many fathers are so traumatized by the horror of the process that they commit suicide (Seidenberg, 1997).False abuse expert, Dean Tong (2002), says of the emotional state of the accused:

Sleep is forever elusive, night-terror becomes common-place and depression is a constant companion. Rarely is there any support to be found within the community and rarely is there any sympathy for the falsely-accused. Throughout it all, you must bear the title “abuser,” until you prove otherwise, if you can. Disorientation, denial, shock, confusion, anxiety, and disbelief are constant. Lack of concentration is a chronic problem, exceeded only by the frustration of being denied the right to see your children. (pg 25)

Immediately, the father finds himself in a maze of confusing litigation. He spends thousands of dollars to retain an attorney. Police often request the father to take lie detector tests.  Even though he submits to and often passes several polygraph tests, it does him little good as the tests are not admissible in court. A single attorney is rarely sufficient to provide an appropriate defense in this type of case. Thousands of dollars must be spent to retain psychologists and other expert witnesses in the fields of sexual abuse. In an attempt to prove their innocence, many fathers submit to invasive psycho-sexual testing, such as the penile polygraph. In this particular test sensors are placed around the penis and variety of video images are displayed to the father, such as children playing in water or little girls in bathing suits. The subtlest of sexual responses while looking at images of children will condemn the father. The cost of testing, attorneys, expert witnesses and other legal fees in this type of case often exceeds $50,000.The father sometimes has to mortgage his home and sell his assets to afford a sufficient defense.

Naturally, little money is leftover at the end to use in a custody case.
In most court districts throughout the United States, judges run for office as any other politician. If a judge takes, or fails to take, an action that leads to the abuse of a child by an alleged child abuser, his political career may be over. Political expediency is a strong, yet unspoken, factor in emotionally charged cases such with child sexual abuse (Seidenberg, 1997). When a father has been falsely accused of molesting his child, even when no evidence substantiates the claim, he often loses custody of his children because the court decides to “play it safe”. The father may not go to jail, but the temporary order preventing his access to his children is frequently made permanent. By no fault of his own, the father has lost his children, all because a mother chose to fight dirty in court. For the unfortunate father who loses his criminal case, he is locked away. Sentencing for child molesters is typically longer than sentencing for murder (Seidenberg, 1997).Men convicted of child molestation are constant targets of prison abuse by fellow inmates. Fathers, unjustly incarcerated, become bitter and less productive members of society.

The father is not the only victim in a false child sex abuse allegation. Children are also victimized. Not only does the child have to submit to numerous interrogations and invasive tests to determine if abuse occurred, but needless therapy is often prescribed. The child, knowing at first that nothing happened, is subjected to counseling that reinforces the story that abuse has occurred. In time, many children grow to believe and accept that their fathers molested them. The emotional trauma is life-long. This phenomenon has become so common that psychologists have given names to the syndromes that result from false abuse claims, including Parental Alienation Syndrome (PAS) and Sexual Abuse in Divorce (SAID).The allegation is, in itself, a form of child abuse (Wexler, 1990).The loss of self-esteem, the destruction of the father-child relationship, the mental and emotional damage and premature sexualizing of the child are all very real results of a false abuse accusation. Children who grow up believing they were sexually abused often develop deviant sexual interests and proclivities.
No child should be treated so heinously by parents embroiled in a legal chess game.

A false child sexual abuse allegation, while usually ensuring the legal victory for the mother, is destructive to all parties involved. Child molestation is a terrible crime and false accusations play on the natural prejudices of society to the extent that victory can almost be guaranteed for the accuser. The loss of fathers in the lives of their children has many negative consequences for society as a whole. Laws need to be passed that protect the rights of the accused as in any other type of trial. Penalties for false accusers must be created and imposed. Social workers, judges, and others involved in the investigation of this type of allegation must be taught the syndromes that affect children when a false abuse claim is made. Sexual abuse claims made in the middle of custody proceedings must be viewed with some skepticism. Judges must be made aware of the usefulness of certain scientific tests, not currently admissible in court, which may help to vindicate the accused. Finally, an emphasis on more stable families will lead to fewer divorces, and, therefore, fewer false abuse claims. Until these, and other, reforms take place, innocent children will continue to be used as pawns in a senseless game of legal strategy.

References:
Brennan, Carleen, & Brennan, Michael (1994).Custody for Fathers: A practical guide through the combat zone of a brutal custody battle.Costa Mesa, CA: Brennan Publishing.
Hardwick, Charlotte (2004). Win Your Child Custody War.New York, NY: Pale Horse Publishing.
Leving, Jefferey M. (1997).Fathers’ Rights: Hard hitting and fair advice for every father involved in a custody dispute.New York, NY: Basic Books.
Ney, Tara (1995).True and False Allegations of Child Sexual Abuse: Assessment & case management.New York, NY: Brunner/Mazel, Inc.
Seidenberg, Robert (1997).The Father’s Emergency Guide to Divorce-Custody Battle: A Tour through the Predatory World of Judges, Lawyers, Psychologists & Social Workers, in the Subculture of Divorce. Takoma Park, MD: JES Books.
Tong, Dean (1992).Don’t Blame Me, Daddy: False accusations of child sexual abuse. Norfolk, VA: Hampton Roads Publishing Co.
Tong, Dean (2002).Elusive Innocence: Survival guide for the falsely accused. Lafayette, LA: Huntington House Publishers.
Wexler, Richard (1990).Wounded Innocents: The real victims of the war against child abuse. Amherst, NY: Prometheus Books.


Jake Morphonios is a civil rights advocate and North Carolina State Coordinator for Fathers 4 Justice – US.  The political opinions of Mr. Morphonios do not represent those of Fathers 4 Justice.  Neither Mr. Morphonios nor F4J-US provide legal advice or assistance with individual cases.
Fathers seeking support or information, or other parties interested in becoming involved in the father’s rights movement may contact Mr. Morphonios at: jake.morphonios@nc.f4j.us

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