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June 24th, 2012 by Robert Franklin, Esq.
Canadian lawyers are speaking out against the practice of using false claims of violence to gain an upper hand in child custody cases.  Read about it here (Law Times, 6/4/12).

For almost 20 years now, lawyers on both sides of the Great Lakes have been complaining that false claims of abuse are distorting the family court system and harming children.  In this country, data compiled by Douglas Allen and Margret Brinig show that the main reason fathers are unable to get shared parenting orders is the fact that the mothers of their children level allegations of violence at them.  Of course not all of those claims are false, but many of them are.  In another study, family mediators estimated that as many as 70% of abuse claims were false.

But so far there’s been little in the way of data to prove what percentage of abuse claims are fabricated.  The article linked to doesn’t do a lot to rectify that, but it provides some intriguing suggestions.

During his 20 years as a criminal defence lawyer, Joseph Neuberger has defended more than 400 cases involving charges arising from domestic relationships. Many, he says, relate to separation and bitter family court battles.

“Over the past 10 years, I have noticed an increase in the prevalence of these types of offences with a disturbing trend to use the criminal process as a quick means to obtain exclusive possession of the matrimonial home and thwart custody and access to the children of the relationships,” says Neuberger.

“I have successfully established fabrication in at least 15 per cent of the cases with very clear contradictions in evidence, including differences in affidavit evidence tendered in the family court proceedings.

The article is scrupulously gender-neutral.  Nowhere does it suggest that either sex is more responsible for false allegations than the other.  But what isn’t a secret is that mothers in Canada are given sole or primary custody in about 90% of cases.  In the U.S. the number is 83%.  So if either sex is using false allegations of abuse to gain a leg up in custody cases, it’s likely women.  But, concerned as it is with the problem, the article’s author never inquired of any of the attorneys she interviews just who it is fabricating all those claims.  So I did.

As the article says, attorney Joseph Neuberger is a criminal defense lawyer.  He’s defended some 400 people accused by the state of committing domestic violence and, in 15% of his cases, he’s actually proven the claims to have been fabricated.  That’s 60 cases.  So I asked him in how many of those cases was the false accuser female.  His answer:  ”all of them.”  All 60.

Keep in mind that he’s a criminal lawyer.  He’s looking at cases in which the state believes there’s enough evidence to prosecute the accused.  It would be a mistake to believe that only 15% of abuse claims in family court are made up.  My guess is that far more are.  That’s because allegations of abuse in family court require little or no substantiation, and of course they require no evidence whatsoever of actual violence.

Remember the case of Bradley Howe?  I wrote about it here.  Astonishingly, Howe’s ex never claimed he was physically violent.  Indeed, the only evidence she offered in court was that Howe was “filing all these actions [in court].”  By that she meant that he had filed motions complaining that she was refusing to allow him access to his daughter as required by court order.  This, she claimed, placed her “in fear,” and that was all it took to get a permanent injunction issued against him.

Remember also that the vast majority of people who experience domestic abuse don’t report it to the police.  As Canadian data make clear, that’s mostly because they view it as a private matter and don’t want the police, courts, judges, lawyers, etc. involved.  So it’s reasonable to conclude that the DV claims that do get reported to the police are more likely to have some sort of foundation to them.  That is, people who report DV to the police have something to lose.  The other spouse will be banned from the house, the other spouse and the kids.  That means he/she will have to find a place to stay, and the whole thing will cost money, time, aggravation and mutual enmity.  So people tend to deal with DV themselves without involving the “authorities.”

On the other hand, in family court, there’s no downside to a mother’s claiming abuse.  False claims are essentially never punished and the upside – getting custody – is immeasurable.  So it seems clear that claims of abuse in family courts are far more likely to be false than they are in criminal courts.

“So if you want to play the game, ‘I want custody, I want to control the situation,’ often people will take the position, ‘I’m going to call the police,’” says [family attorney Murray] Maltz.

Immediately, the accused leaves the home and can’t communicate with the spouse and the children or come within a certain distance of the house. That makes the issues of custody and access more difficult.

As a result, according to lawyers, the spouse making the allegation has an edge in the case. With exclusive access, the children themselves could become pawns in the case.

It’s a scenario that’s all too familiar to many fathers.  Mom claims abuse and immediately gets the kids and the house for many months before her allegations can be ruled to be unfounded.  By then, custody is a virtual fait accompli and Dad is under a cloud that may never leave him.  The almost entire lack of accountability on the part of false accusers only means the practice will continue.

“It usually comes about when there’s a matrimonial breakdown and then police are called,” [attorney Esther Daniel] says. “I’ve had a lot of criminal clients that have had proceedings against them . . . and family court proceedings follow.”

It’s difficult, she adds, to discern fact from fiction. Clearly, the issue of abuse between couples is one the courts take very seriously. But it’s also clear to many lawyers that some people use the process to further their own family law case.

“Unless you personally are witness to what the situation was . . . you don’t know 100 per cent,” says Daniel. “However, you can assess the situation and have a good judgment.”

At the end of the day, it’s the subjects of many of those disputes who suffer the greatest impacts, says family lawyer Kristy Maurina.

“We are dealing with real lives and the interests of children,” she says. “It can have a detrimental impact on the children who are already dealing with the pain of separation and are now faced with a loving and involved parent who is suddenly not allowed to see them anymore.”

For those involved in a marital dispute, the damage is immediate once someone levies a criminal charge.

Actually, the solution to all this is simple – punish perjurers.  Until family courts start doing that, false allegations will continue and children will be separated from their fathers on false pretenses.  It’s true that you can’t always tell if a claim was fabricated, but often it’s not that difficult.  And if a family court judge doesn’t want to send Mom to jail (after all, that requires proof beyond a reasonable doubt) he/she can take other actions that require a lower standard of proof, but still make the point.  For example the judge can change custody to the other spouse or reduce parenting time on the part of the false accuser.  He/she can make the false accuser pay the other side’s attorney fees and costs of court and do other things that make it clear that lying under oath isn’t acceptable.

Ironies in family court abound, but few are more evident than in the case of false allegations.  Courts routinely rubber-stamp false claims of abuse that deprive children of their fit and loving fathers, and they do so (as they never stop telling us) in the “best interests of the child.”

It doesn’t get any crazier than that.

Thanks to Paulette for the heads-up.

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