March 4, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Anyone familiar with child custody proceedings in family courts is aware of the routine use and misuse of claims of spousal abuse, child abuse and/or child sexual abuse to gain an advantage in custody cases. For decades now, family lawyers have been raising the alarm and the few studies there are demonstrate they’re right.
Those claims of abuse are highly effective of course, which is why they’re so common. The targeted parent eventually gets a hearing, but long before that, he/she can be removed from the family home and ordered to stay away from the kids. That produces a fait accompli. By the time temporary orders are issued, the targeted parent has little hope of significant parenting time, if any at all. And, as temporary orders go, all too often, so go permanent ones.
So allegations of abuse are common and many of them have no basis in fact. That one parent made false allegations of abuse for the purpose of marginalizing the other parent in the children’s lives should be cause for punishment by the court, but it rarely happens. The rule is that false allegations are a free shot. They may strike their mark or they may not, but regardless, the parent who levelled the charge suffers no consequence.
This article lets us know it’s actually worse than I’ve just described, at least when one parent serves in the armed services (Huffington Post, 2/29/16). In that case, a claim of abuse, whether false or true, can be made to the military bureaucracy that vets it via a process that would embarrass even our family courts by its disdain for due process of law.
It is possible, under the U.S. Army’s congressionally mandated Family Advocacy Program, to initiate an underhanded chain of events that will ultimately give you a credible and perhaps overwhelming advantage in your custody bid…
Here’s how it works:
You make an anonymous report to a state-based Child Welfare office, suggesting that your opposing parent has engaged in some form of abuse. The report, if it concerns the child of an active-duty service member, gets funneled to the Family Advocacy Program (FAP) operating under guidelines of the Department of Defense (Directive 6400.1). This anonymous allegation is reviewed by a team of social workers and is immediately classified into a "dark zone" that cannot be pierced by any legal review. A social worker will call you in for an interview, along with the child you’ve (presumably) prepped to be the "alleged victim." You and the child each provide testimony, and you will have begun the "corroboration" process of an allegation you invented…
Then, a month or more after you’ve laid the groundwork, your opposing parent will first be notified. She (or he) will be surprised to learn that she is not allowed to see what the allegations actually are. Nor will she be allowed to know who made them. Nor will she be allowed to see the "alleged victim’s" testimony nor your testimony.
If any of that sounds familiar, it may be because it’s much like the process adopted by colleges and universities at the behest of the U.S. Department of Education’s Office of Civil Rights for dealing with allegations of sexual assault on campus. Those have come under fire for their disdain for due process of law that’s very similar to the Army’s described above.
[T]he Army provides a perfect little Star Chamber to give your germ of an allegation the kind of formal status it needs to grow into a full-fledged "fact."
A Case Review Committee (CRC) convenes a few days after your opposing parent first gets notified. The CRC is a black hole; the "alleged abuser" cannot know whom it consists of, where it meets, or how it deliberates. The "abuser" is not allowed to attend, nor is her attorney or any other defense representative. The CRC, meanwhile "…uses a ‘preponderance of the evidence’ standard to determine if an abusive incident ‘met criteria’ under Army defined criteria for abuse or neglect." (FAP Interim Guidance and Information Papers, A.R. 608-18).
Did you catch that? It was subtle, but this is how administrative despotism works: "…to determine if an abusive incident ‘met criteria’…"
The job of the CRC is not to determine whether the incident actually happened (which would necessitate all kinds of uncomfortable legal deliberations, replete with time-consuming discovery, evidence, and oversight) but simply to determine whether your anonymous suggestion of "abuse" would meet administrative standards if it had happened.
It should come as no surprise that, when this Darkness at Noon process is complete, the distinction between what actually happened (if anything) and the Army’s “met criteria” standard gets lost. If the secret committee decides the allegations met the requisite criteria, then, whether anything happened or not, the targeted parent is in for quite a ride.
If the Committee determines that the "incident" meets its criterion for abuse, it "develops an intervention/treatment plan for all individuals involved." This can consist of hundreds of hours of various parenting, anger-management, and other "supportive services."…
The "incident," the "abuser," and any "associated treatment" all enter what is called the Central Registry (CR), a restricted database that is legally subject to subpoena. Even the incidents that "did not meet criteria" are saved.
It’s that “subject to subpoena” part that allows this whole Star Chamber process to make it into family court. Parent A makes the allegation; Parent A’s lawyer subpoenas the Army’s records which the family court judge duly considers in deciding parenting time.
At this point the fabrication enters stage right in civil court as a vetted, third party confirmation of the opposing parent’s insufficiency as caregiver. What judge is likely to consider, ceteris paribus, that the parents are equally capable when one of the parents has a documented, DOD-stamped black mark against her name? After all, it’s in her medical records, she has undergone intensive "treatment" classes, and she’s not even allowed to work in a childcare facility. Who would want that parent to have joint custody? The invented allegation has been laundered through an extra-legal administrative process that turns imagination into legal reality. The administrative process has outflanked Due Process, and that, dear friends, is how it’s done.
It’s how facts that aren’t facts, that have never seen the light of due process of law, that have never been questioned in open court become “facts” that can easily sway a judge’s decision. And there’s only one thing anyone can do to challenge the Army’s finding, but it has nothing to do with whether abuse occurred or not. The only question anyone can ask is whether the Army tribunal followed the procedures set down for it. If it did, the tribunal can find that Dad is Jack the Ripper and no one can so much as utter a peep of protest.
The fight to make child custody laws sane and beneficial for children goes on, but the antipathy with which our adjudication of claims of abuse make that fight more difficult than it ought to be. We long ago swallowed the false claim that fathers are dangerous to mothers and children and that any claim of abuse should be presumed true regardless of due process of law. That the U.S. Army has thrown its hat in the ring on the side of those who would marginalize fathers in the lives of their children is disgraceful and yet another blow against children’s well-being.
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