PUBLISHER’S UPDATE: Here is one of my favorites posts written by custody expert Judianne Cochran from back on September 18th, 2010! We have a ton of interesting articles in our archives of the Ohio Family Law Blog. Use our Search tool and enjoy a few oldie but goodies!
Using False Allegations In Family Law Custody Cases. Will I get A Better Position?
In recent years there has been a steady and alarming increase in the use of false allegations of vague, unsupported claims of domestic violence and even vaguer claims of child abuse, used solely in an attempt to find a shortcut to a presumed better position in custody cases.
What is more alarming is the observation that more often than not the attorneys of record for the litigants making these claims have been those unschooled in and relatively new to the family law arena, who have chosen to step outside their actual specialty and add a minor “division” of family law to their practices. Often, a new, young, unskilled associate is added to the practice to handle these family law issues.
Some of these practitioners use this mechanism so frequently that simply hearing the name of the attorney leads one to assume that automatically there will be a “smoke and mirrors” allegation followed by the attempt to go in the back door to gain at least temporary custody of the child. In most jurisdictions, these attorneys become known through a variety of “word of mouth” referral processes and, not surprisingly, the number of these cases rapidly increases.
“Word of Mouth” Referral Network
The interesting aspect of this “word of mouth” referral network is that the “word” spreads so rapidly. The litany of “complaints” is so common that I often wonder if there isn’t a publication most of us aren’t privy to that gives instructions. In recent months, I have had an increasing number of referrals bluntly state that they consulted an attorney regarding initiating a divorce with children or a post-decree custody issue and were told to first consider contacting their local child protective services agency.
Then, if they manage to get a case opened, the client is advised to come back to initiate the action and it would then be a slam-dunk case to at least temporarily get a sole custody order. Some have been told to think about the past year and make a list of possible allegations which might be used to get a temporary order, or at least a temporary protection order which includes the child.
When the child is very young, there is a “suggestion” to the client to have the child medically examined because then there is a record of suspicion of sexual or physical abuse. Many of the practitioners who subtly or otherwise raise this suggestion inform the client that the doctors are mandated reporters so, if the seed is planted, the child protection agency will be required to do at least a cursory investigation.
This, of course, puts the target parent under a cloud even when the allegation is determined to be unsubstantiated.
Blatant Misuse Of False Allegations Not Condoned By Court
It is alarming that there is no consideration given to the best interests and well being of the children who are the subjects of this distasteful practice. There is a disconnect in ethics and logic, and there is no awareness that the little conspiracy between attorney and client to create this fraud will traumatize the children involved, sometimes almost irreparably. While I recognize the narcissism and need for control in the parent who will go to any length to get what they want, I am more appalled at the narcissism and unethical behavior of the attorneys who encourage this “gambit”.
An aspect of this practice that is deplorable is that there is little done by the courts to discourage the practice. In the family law court there is rarely any sanction against the litigant for perjury, false allegations or abuse of the blatant misuse of the statutes regarding protection orders; and worse, the attorneys who create these nightmares are rarely brought to task, even when their own client testifies that the “game” was created by their attorney.
Since the Court is under no ethical standard to report the bad behavior, it needs to be the ethical and moral obligation of opposing counsel to follow through with the Supreme Court.
Attorney Disbarred And Charged With Felony
When appropriate action is taken, both the Disciplinary Counsel and the Court do follow through. Attorney Doris Houser Allen from Hamilton County was not only disbarred, but was charged with a felony for helping a client prepare false affidavits. At her sentencing for the felony charge, Judge Steven Martin called her behavior “reprehensible”. Her client, Sylvia Huff, however, even after admitting to the set-up and false allegations, just blamed Allen for the predicament.
Other courts around the country are also beginning to react to this pattern of behavior. Recently a woman in Manchester, New Hampshire, was sentenced to seven to fourteen years in prison for making false claims of domestic violence during her custody case. At her sentencing before Judge Kenneth McHugh, Assistant County Prosecutor Jerome Blanchard said that her “folly” was that the claims in criminal court had to be backed up, unlike in family court where she made repeated claims against her ex-husband with impunity. As he put it, “We’re not in family court anymore”.
This is the sad reality: Family courts historically do not require proof, ignore the evidence and “err on the side of caution” even when the lies and the unethical behavior of the attorneys involved are exposed. It is encouraging that this pattern is being exposed and both litigants and attorneys are facing the sanctions they deserve. However, nothing will happen to either litigant or miscreant attorney until and unless someone steps up to the plate and follows through.
Family Law Attorneys Can Be Prosecuted Over Unethical Custody Advice
If you are an attorney pleased with yourself about your “winning” games, remember that anyone can bring the complaint against you. Remember also, as is the case in Allen, your client will throw you under the bus by assuming the “victim persona” you helped create. Keep in mind that when your client testifies about your “recommendations”, people are listening and paying heed to your behavior.
Today, that clock is ticking and you will be brought to task. If you are a litigant who has had this “game” suggested to you by your attorney, keep in mind that you, too, can be prosecuted, that you can lose that custody you so coveted that you would cheat and lie to get. My suggestion would be to reject the game and run, don’t walk, to an ethical, skilled Family Law Attorney. Then, file a complaint against the attorney who gave you the unethical advice.
I am very aware that many people have difficulty in selecting an attorney and understanding the best mechanism for finding one. I will be helping to explain how to navigate through that mechanism in a follow-up article.
About Judianne Cochran
Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; false allegations in custody cases; interstate and international parental abduction; interstate custody and parental alienation. She has testified in numerous Courts throughout Ohio and the country. Judi presently resides in Columbus, Ohio.
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