Counterattack and Control: Keys to Successful Defense of False Child Abuse Accusations

Eliot R. Clauss*

ABSTRACT: An aggressive counterattack can be effective in cases of a false allegation of sexual abuse in a divorce and custody situation.  The best chance the falsely accused parent has to counter the allegations and overcome the false allegation exists at the first hearing.  Actual motions from a case are presented. Although the accused parent did not get custody, the accusation of sexual abuse was put to rest and the parent received regular, unsupervised visitation.

In defending false accusations of child sexual abuse, there is rarely such thing as a preemptive first strike.  The next best thing, however, is a swift and aggressive counterattack that demonstrates to the court and the false accuser that you consider the false allegations a Pearl Harbor declaration of war, that you are prepared and capable of fighting and defeating the attack that has been made upon you, and that you will not rest until the issues raised have been settled in your favor with strict adherence to the legal principles upon which our judicial system is based.  This article, together with the sample papers printed, are offered as an example of one such counterattack.

False accusations of child abuse are so devastating that often times the accused and his attorney are rendered speechless and ineffectual by the accusations leveled in the ex parte application for a restraining order which prohibits contact between the accused and the child at issue.  The accused may lapse into a period of self-pity and inertia.  His attorney may try to tell his client that things are not as bad as they seem and eventually will be resolved in his favor and not to worry.  The attorney may, at the same time, feel reluctant to take on the monumental task of defending against the accusations and may even wonder if there might be some truth to them.  Often the attorney will recommend that he and his client wait until the first hearing and see how things go before planning a strategy for the defense.  This is a mistake.

The courts are so reluctant to deal with these cases effectively, and there is such a dearth of qualified people to assist in their handling, that a weak, equivocal, conciliatory, unplanned response to a false accusation will virtually guarantee that your case will rapidly become mired in endless delays and obstructive tactics, while the child is interviewed to death and programmed, sometimes inadvertently, to embellish the story and make the case even more difficult than it had been at the outset.

A swift, intensive and broad-based counterattack mounted before the first hearing takes place, with the objective of demonstrating your resolve to the court and attempting to take control of the litigation, is the best chance you have to prevent the case from spiraling inextricably out of control.  As a general rule, if you cannot acquire some control of the litigation at this first hearing, you are doomed to wallow through weeks and months, perhaps even years, of court hearings, motions, evaluations, and other histrionics which do little if anything to resolve the issues, but are guaranteed to be stressful and emotionally and financially devastating to the child and the parties involved.

In a recent case, my client was referred within several hours of receiving the ex parte restraining order and underlying papers.  We met the same day and planned our counterattack which had four fundamental objectives.  First, to shift the court's focus from the alleged conduct of the accused, to the psychological functioning of the accuser (my client's ex-wife) and her motivations for raising a false accusation.  Second, to encourage the court to immediately appoint an independent psychologist to evaluate the entire family while prohibiting any other interrogation of the child in question until the independent evaluation could be completed.  This was done in the context of advocating full disclosure of any and all past psychological, medical, counseling or other records of the accusing mother, accused father, and subject child which might have any bearing on the case.  The third objective was to attempt to return the custody of the child to the accused, where it had been for several years before the restraining order was issued, while providing constant adult supervision of the accused and the child.  This was designed to preserve the status quo (that is, to permit the child to continue living with his father, attending school and associating with his friends, while the independent evaluation took place), while protecting the child from the purported risk of abuse from his father.  Fourth, was to persuade the court that any delay in addressing the serious issues raised would be extremely detrimental to the child no matter what the ultimate outcome was, and thus to encourage the court to act promptly and decisively

The broad theme of the counterattack was to show the accusing parent and the court that this false accusation had been leveled against, in essence, a sleeping giant, rather than a timid lamb, and that the accused had no reluctance about challenging the accusations squarely, and with full disclosure, since the accusations were totally false.

The other broad objective was to demonstrate to the court that the accused was the more caring, more loving, and more responsible parent, and that his objective was to do the utmost to preserve the child's customary lifestyle and minimize trauma to his child while the false accusations were being investigated and resolved.

Within four weeks from the date the restraining order was served, the court appointed an independent expert to evaluate the family, prohibited interviewing of the child by anyone (including the child's court appointed attorney) until after the independent psychologist had interviewed the child, held two days of hearings at which the expert and principal parties testified, and issued a finding that the allegations of abuse were not substantiated.  Although custody of the child was not returned to my client for other reasons, the false accusation of abuse was put to rest in such a way as to minimize its impact and potential for ruining the reputation and livelihood of my client, and indeed of the entire family.

What follows are copies of the papers actually submitted in this case except that the names of the parties and some of the facts have been altered to protect the identities of the individuals involved.  Ferguson, and the family members' first names are fictitious names and were selected at random.  In all other respects, the papers are identical to the ones used.  Obviously the approach taken in any specific case must be tailored to the facts and circumstances of that case.

I am convinced that the best chance the falsely accused has to gain control of the litigation and beat the accusations exists at the first hearing.  Opportunities after that are few and far between and exist only if the defendant creates them.  In these cases the defendant is clearly perceived as guilty once the allegation is made and usually even long after it is found to be unsubstantiated and/or the defendant is acquitted.  It is largely because of that perception of guilt that it is essential to shift the court's attention to the real perpetrators of abuse: the falsely accusing parent and/or the inept and unqualified therapists and investigators.

The following papers are reprinted.

1. Plaintiff's ex parte application for Modification of Custody and Restraining Order.

[Affidavit]  [Order For Hearing]  [Order For Service]

2. Defendant's Objection to Plaintiff's Application.

3. Defendant's Affidavit in Opposition to Plaintiff's Application.

4. Omnibus Memorandum in Support of Defendant's Motions.

5. Defendant's Motions:

a) for psychological evaluation of the plaintiff;

b) for physical examination of the minor child;

c) to prohibit plaintiff or her agents from interviewing the minor child;

d) for court appointed independent psychological evaluation of minor child and electronic recording of interviews;

e) for audio- and videotaping of all adult investigative contacts with the minor child;

f) for filing of UCCJA affidavits.

6. Memorandum of Decision

The author welcomes comments and criticisms with respect to these papers as well as samples of papers used effectively in other cases.

* Eliot R. Clauss is an Attorney practicing with the firm of Peltz, Walker, Brennan & Dubinsky at 291 Broadway, 13th Floor, New York, NY 10007.  [Back]

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