In the divorce court, the accused spouse will defend against child sexual abuse. The standard of proof is preponderance of the evidence.
The rationale, of course, would be that if sexual abuse was not proved in the civil court under a standard of preponderance of the evidence, the district attorney could not expect to prove the act in criminal court to a higher standard, that is, to the more difficult proof without reasonable doubt.
Reality does not always match a theory. District attorneys have more expertise trying such issues than divorce lawyers. The rules of evidence in a criminal court are different from the rules of evidence in a family court. In Massachusetts, the rules are followed, but the presumptions are in favor of the prosecuting district attorney in criminal court. In Massachusetts probate courts, however, rules of procedure and evidence are slackly followed.
Is there a difference in your state? You must consult an attorney there.
Depositions and subpoenas duces tecum are ideal for getting social workers' process notes, notes they must keep in order to stay in good standing with their board. At depositions, you want to learn what their credentials -- to wit, their education, training, and experience -- are, the standard or criteria they use when interviewing children, their process notes, their files on the children (including the children's drawings), their definition of what play therapy is, the criteria they use to assess whether the abuse has occurred, whether there was a sexual abuse assessement performed . . . essentially what happened from the moment the case came to the attention of the authorities and the social agencies and who was assigned to the case at every moment.
Very few social workers appear to work to any
standard. They are the soft underbelly of the case against you.
I am not, I assure you, putting down social workers: there are some
brilliant ones out there . . . except they are few and far between on the
front lines. They have, instead, moved forward or upward in academia
. . . for instance.
Visitation: Supervised or Unsupervised
Once the accusation is made, the accused parent is denied free or unfettered access to the children. Visitation under the watchful eyes of an approved supervisor is generally all that is possible. And that supervisor is generally provided by a community center or so-called charitable agency . . . and use of the facility generally costs money.
Often the agencies have rules, rules which you might perceive as demeaning if your liberty hasn't been restrained on some prior occasion.
Often the falsely accused parent is so intimidated by the allegation that he or she relinquishes any claim for custody. This holds true even when the falsely accused parent is the parent most suitable to have custody.
But, depending on the law in your state, a claim for custody might give you access to people and answers to questions that you might not have if you do not make the claim.
For instance, if there is a child custody dispute
in Massachusetts, the court may decide that the best interest of the child
would be better served if the diagnosis or treatment of a parent's mental
or emotional condition is known. If that determination is made, the
court will allow the other parent to pierce the privilege of nondisclosure
of communications between a parent and certain social workers.
In any case involving child custody, . . . upon a hearing in chambers, the judge . . . determines that the social worker has evidence bearing significantly on the client's ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between client and social worker be protected. . . . M.G.L. c. 112, s. 135B.
Even though the statute is in place and the language is clear, it is not often that judges elect -- in their discretion -- to go behind that wall of silence. But if there is no custody fight, you will not even get a chance to try to get behind that wall.
Also, if there is a custody fight, in addition to the false allegations, you likely would want to depose the sundry social workers assigned or retained to work on the case: the social worker serving as a supervisor of visitation with the children, the social worker playing therapist for the allegedly abused child, the social worker counseling a parent, the social worker who took the input from the mandatory reporter, the social worker who did the alleged investigation for the administrative agency. The falsely accused can in the divorce court even depose the police detective assigned to the case.
In Massachusetts, as soon as the administrative agency supports the accusation, the case is referred to the appropriate district attorney's office, which then calls it in to the police department as the investigative arm of the prosecutorial team.
You should find deposition testimony helpful for
impeachment purposes at the criminal trial. Often social workers
who cannot answer questions at deposition will not appear on the district
attorney's list of witnesses for the criminal trial. Essentially
embarrassment, conscience, guilt -- all act as deterrents.
You should get medical records and laboratory reports first by Keeper of Record subpoenas. There then may be no need to depose the doctor.
Clinical and forensic psychologists
Guardian ad litem
Sexual offender profiles
Answers to Interrogatories
Requests for Production of Documents