DO's and DON'T's When Falsely Accused Of Sexual Abuse
Many wives involved in a custody dispute will file false charges of sex abuse against their spouse to gain the upper hand. If you're accused of sexually abusing your children, immediately contact your attorney and then follow these guidelines.
This material is brought to you courtesy of NASVO, the National Association of State VOCAL Organizations
This is a devastatingly effective tactic in many cases, and is becoming a commonly used means of stopping a custody battle in it's tracks.
DON'T INVITE LAW ENFORCEMENT OR SOCIAL SERVICES INTO YOUR HOME WITHOUT A WARRANT. This waives your right under illegal search and seizure under the Constitution. This will allow them to come into your home at ANY TIME and search and seize your children or belongings.
DON'T SPEAK TO ANYONE ABOUT YOUR CASE without first consulting a lawyer. Everything you say can and will be used against you. If you cannot afford a lawyer one will be appointed to you if you are arrested. No attorney will be appointed to you if this is a civil case (family law). In some states, attorneys are appointed to parents in juvenile dependency court. Contact the local Bar Association or legal information service nearest you for this information.
DON'T CONTACT THE ALLEGED VICTIM, THEIR FAMILY, OR PROSECUTION WITNESSES. Any and all such contact will be construed as an attempt to bribe or threaten the alleged victim into silence or recantation. Such contact must be done through a PRIVATE INVESTIGATOR who will work through or with your attorney.
DO GO ATTORNEY SHOPPING. Seek out an attorney who is experienced in child abuse cases (specifically false cases). For assistance, contact your local VOCAL or call NASVO at (916) 863-7470. If you cannot afford an attorney, one will be appointed to you in criminal court. If you are in civil court (family), you must pay for your own attorney. Depending on the state, you may or may not be appointed an attorney in juvenile dependency court.
DON'T TURN TO DRUGS OR ALCOHOL. Such substances are habit-forming and are depressants. They can cause you to jeopardize your case.
DO KEEP ACTIVE. Physical and social activity are healthy and will assist in keeping depression at bay.
DO HIRE A PRIVATE INVESTIGATOR. Some attorneys have their own in-house investigators. Some do not, and IT IS CRUCIAL THAT AN INVESTIGATOR BE IMMEDIATELY ASSIGNED TO YOUR CASE. If your attorney does not provide one, call NASVO for references.
DO KEEP A DAILY JOURNAL. A journal should document what you do, where you go and people who see you or are with you. Keep receipts of purchases for evidence of activities. Go through canceled checks, photos, letters and holiday experiences to back-date a journal. Try to reconstruct everything you did and where you were at the time of the allegation. Give a copy of the journal to your investigator and lawyer; it may provide evidence.
DO STRIP-SEARCH THE ACCUSING CHILD'S ROOM, if the child lived in your home. It can provide proof of your child's activities and sexual and social habits. Look for notes, letters, diaries, photos, telephone numbers, drug or sexual paraphernalia. Give copies to your investigator and your lawyer.
DO PAY YOUR ATTORNEY OR INVESTIGATOR. The people you hire for your defense are professionals and will work toward finding a solid defense. It is advisable to ALWAYS ENTER INTO A CONTRACT AGREEMENT FOR FEES. This sets the boundaries of your agreement and protects both you and your defense professional from failure.
DOCUMENT EVERYTHING. If possible, tape record or video tape all conversations with anyone involved in your case, as well as any visits you may have with your child. Federal law says that it is legal to make tape recordings as long as one person being taped consents to it. Some states say otherwise; California is one of them. To legally tape record anyone in California (state law) you must advise them that you are going to tape record the conversation and that if they do not wish to be taped then they have the right to remain silent. If you are unable to tape conversations or visits, then document the situation as it is happening or as soon afterwards as possible. Be sure to include as much detail as possible.
START A PAPER TRAIL. Every time you talk to Social Services, document what was said and write a letter to that person asking them to confirm or deny the contents of the letter within 10 calendar days. In your letter state that "failure to confirm or deny the contents of the letter will constitute an agreement that the information contained therein is accurate". Send the letter by certified mail or Return Receipt Requested. Faxes can sent as long as you have verification that the fax was sent and received. Make sure that you cc: copies of all these letters to your attorney. Advise your attorney (in writing) to send copies of the letter to County Counsel, other attorney's involved in the case and to the judge IF your attorney feels that it is appropriate and that it might be to your advantage.
ARM YOURSELF - WITH POWER. Knowledge is power. Knowing how the system works and what is required of social workers can help you put them on the defensive when you force them to do their job properly!
For California, call the State Department of Social Services at (916) 657-3661 and request a copy of DIVISION 31, CHILD WELFARE SERVICES PROGRAM Manual of Policies and Procedures. Ask to be put on their update list and you will automatically get updates to the manual. Your FREE copy of the manual should arrive about two weeks later. It contains the regulations that CPS is supposed to follow.
Read the manual and document all violations. Give your attorney a copy. In court, your attorney can basically "put CPS on trial", forcing them to defend their actions. This takes the focus off you. If your attorney puts you on the stand, the focus should be on your concern for your child (i.e., regression, poor grades, behavior changes, etc.). This strategy will not guarantee a win, but it can change "the flavor of the court" in your favor.
You can also fax copies of the violations (along with a brief cover letter) to the agencies listed below. This could start an internal investigation into your case.
Children's Operation Bureau; Attn.: Bill Lamb; Fax (916) 445-2898 or (916) 445-2836
US Commission of Child & Family Welfare; Attn.: Kevin Costigan; Fax (202) 401-5539
Call the Administration for Children & Families and ask where to send or fax your letter for their attention in this matter. The phone number is: (202) 401-9200.
LEARN TO TALK THEIR LINGO. CPS uses key phrases like: "indicates, seems to think, appears, could be" and others to gain an advantage in court. Learn to use their key words in your everyday language so it becomes natural and then use them to your advantage on the witness stand. Their use of these phrases is no accident. They KNOW how it will look to the judge. The judge won't see their statements as implications and opinions but will accept them as facts instead. Whatever you do, DON'T LIE but DO use their key words to your advantage. You MUST be better prepared than they are!
CHECK YOUR COURT RECORDS. Check all court documents for errors. Simple things like names and birth dates are often wrong. List all errors, give your attorney a copy. It establishes a pattern of errors which may be used in your favor (i.e., social worker incompetence).
Find opinions stated as facts, i.e. "The child was not unhappy, indicating he did not wish to return home." This is an opinion. The social worker has no idea how your child acts when he/she is happy, sad, scared, confused, tired or sick. The opinion didn't prove anything but a judge may see it as fact: "The child is happy at the foster home and does not want to go home." The judge will not side with you if this opinion isn't clarified!
List every opinion that is presented as fact and give your attorney a copy. Ask your attorney to clarify them in court. It might be enough to tip the scales in your direction. If nothing else, CPS will have some explaining to do in court!
WHO'S SAYING WHAT? If you are involved with CPS, you have the legal right to look through your case file (and to have copies of it). Social services may tell you that you must have your attorney request that information in writing. (It's not entirely legal for them to do that, but you don't really have many options here.) If that happens, ask your attorney to request a copy of ALL case notes and any other documentation that CPS has against you. Ask your attorney to give you copies of ALL information that is obtained so that you can list the errors and omissions in the documentation. (By law, CPS is required to list every contact they have had with you, including all phone calls, but they seldom document it unless they can use it against you.) This step may help you in your defense.
MAKE THEM 'PUT IT IN WRITING'! Any time CPS tries to force you to do something that is not in their plan (i.e. Reunification Plan or Family Maintenance Plan) tell them to put it in writing. (Example: CPS tells you that you can not talk to your child about the past or the future.) They will probably tell you, "I don't have to put it in writing. I told you what to do." At that point, simply inform them that you are not legally obligated to do as they requested unless you have a court order. Make sure that you tell them that you do not feel that those actions would be in your child's "best interests". (Some attorney's will tell you to go along with CPS anyway. They want to keep the peace and they don't want you to make the judge angry. There is some justification to this way of thinking.)
GET FRESH BLOOD. Most attorneys work within their own county. Keep in mind that your attorney must face the same attorneys and judges day after day. They all know what to expect from each other and what kind of a response to expect from the court for various situations. Judges can prevent attorneys from providing their clients with the full benefit of their strategies and expertise, so get some fresh blood in the court room. Try to hire an attorney that is NOT from your county. If possible, hire an attorney from the capital city. Why?
The judge has no idea how your new attorney operates or where your attorney is from. The judge will wonder why you didn't choose someone local and will usually put their "best face" forward. (The judge may think he/she is "being watched" or "evaluated", especially if the judge discovers that your attorney is from the capital city!)
The judge will generally allow far more latitude in the trial to your new attorney. (This is definitely an advantage.)
Opposing counsel won't know what to expect either and it can shake them up enough so they will make mistakes that make CPS look bad. (It's happened before!)
The child's attorney doesn't know which way to go and will probably "straddle the fence" through the entire trial or switch sides in support of the defense. After all, the child's attorney wants to be on the WINNING side. It looks better that way!
STACK THE DECK. Right now you probably have at least two attorney's fighting against your one attorney. In most cases the attorney for the child will side with CPS as long as they look like they are on the winning side. Keep in mind that your child's attorney is getting one-sided information. They are not talking to you. They are not asking you what you think is best for your child. Chances are, they aren't doing much talking to your child either. How can that attorney possibly know what is best for your child if he/she only spends an hour or two with your child? They can't. They rely on the information from the therapists (usually paid for and appointed by the county) and the information from the social workers.
You need ALL the help you can get. Two or more attorneys in your corner will certainly increase your chances of success. If there is a step-parent involved in the child's upbringing, have the step-parent declared a "defacto parent" (this entitles them to have an attorney, one may not be appointed for them, but at least the step-parent can get legal representation and this is another "ace up your sleeve"). If there is a grandparent that plays a very significant role in the child's life (i.e. grandma provides day care while parents work), they MAY be granted "defacto" status as well.
If there are any ex-spouses (child's natural parent) in the picture, he/she MAY be willing to have counsel appointed for them (or hire an attorney) with the understanding that all of you are WORKING TOGETHER FOR THE GOOD OF THE CHILD. It doesn't matter if the natural parents hate each other, the child is all that matters and those negative feelings MUST be put aside. CPS uses the strategy of divide and conquer. You must provide a UNITED front in order to defeat their efforts.
Even if just the natural parents involved, you can still stack the deck in your favor. Make certain you have TWO separate attorneys and that they are willing to work together. There is a great advantage to this. Chances are, one attorney has been on the case since close to the very beginning. The second attorney often comes in much later. The first attorney should already know more about your character, your efforts and so forth. What one attorney misses during questioning (including yourself) the other attorney can cover. Together hey can bring out points that one attorney alone might overlook. Double your chances of winning, get an additional attorney!
HELP YOUR ATTORNEY. The more you do for your attorney, the better armed your attorney will be, and the easier it will be to win. When parents take an active role in their own defense their chances of winning are greatly increased. Don't just pay your attorney and walk away expecting the attorney to do the rest. Your attorney can not paddle your life boat for you unless you inflate it first. Help your attorney defend you. Do your own research, ask questions, and keep your attorney informed.
KEEP A LOG OF EVERYTHING CONCERNING YOUR CASE (phone calls, research, etc.). Find cases similar to your own that has been won, make copies of your findings, and give a copy to your attorney. Make it easier for your attorney to defend you by preparing your attorney well.
PROVE YOUR CHARACTER. Get Affidavits of Character from friends, co-workers and clergy. You can take them to the Clerk's office and request that they be attached to your file. Once they are attached to your file the judge is mandated BY LAW to read them. The Affidavits of Character can not be "thrown out of court" nor do they have to be entered into court as "evidence". You can take these steps without the assistance of your attorney. Another advantage to this is that it allows your friends and co-workers to "testify" for you without having to be subjected to a cross-examination by the prosecution. It is strictly a one-sided view, in YOUR favor! [See Note 1]
KNOW YOUR CONSTITUTIONAL RIGHTS. The Bill of Rights, part of the United States Constitution, is the law. Unfortunately, we the people, often don't know what our rights are. We have, through our own ignorance, allowed the state courts and "the system" to strip us of those rights and we never raised a voice in protest. How did it happen? It happened one little step at a time, year after year, until the system is as it stands today. We can reverse this trend by demanding our rights. We can challenge the laws of the state, court rulings and "county policies" that have been declared local law. We the people have a duty to change the system when it no longer works. These are not idle words, they are the American dreams and ideals we grew up believing in. We can't rely on others to protect our rights, we must do it ourselves; the cavalry is not going to rush in to save us. Learn your Constitution and keep a list of the rights that were violated in your case. You can later use this information for civil suits if you wish to proceed in that manner.
TEACH YOUR CHILDREN TO "BE A BROKEN RECORD" When any government official wants to question your child, he/she can answer each question with something to this effect:
"According to the Privacy Act of 1974, I don't have to answer any questions without my parents being present."
If they proceed to question your child without you being present, they are in direct violation of the law and can be sued for it. The state receives Federal Money and their employees are bound by the Privacy Act of 1974.
CAN I SUE? Yes. Some states are changing laws so that social workers can be sued for violations of civil rights. In California social workers will have the same immunity that police officers have starting on January 1, 1996. Social workers previously had absolute (total) immunity regardless of their actions. Civil law suits are forming all over the country. Some are class action suits, some are single suits. You can find out what suits are forming near you by calling various parents and family rights organizations (VOCAL, MASA, Fathers For Their Children, Protective Parents, Injustices In The Court, and so on). Who can be sued? The state, the county, social workers, police officers, foster parents, and sometimes judges and the federal government. It won't be easy, but your fight will ultimately help the next generation and each generation after that. By making the effort now, you are helping your children avoid the same dangers when they become parents themselves.
FILING AN INTERNATIONAL COMPLAINT. You can file a complaint against the United States for violations of the Constitution. This complaint is filed with the U.N. and will remain as part of America's history for as long as the U.N. stands. Complaints can be filed for: false imprisonment, cruel and unusual punishment, torture, acts of terrorism, and so on. For more information, call VOCAL at (800) 745-8778 and request the address for the Florida VOCAL chapter that is compiling this information.
WHEN GOING PUBLIC.... If you go public with your story make your child "bigger than life". Have a picture of your child blown up to poster size. You can use it when giving speeches or protesting. It is a great attention getter, AND, the people you are speaking to are forced to "see" your child. Granted, it's only a picture, but your child is no longer a faceless victim of the system. Your audience will remember the color of your child's hair, the missing tooth, the grin, the glint in your child's eyes, and so forth. Your child will become real to them, rather than just being a statistic.
Do not use your child's name when protesting or giving speeches. Although the Constitution and the Supreme Court upholds your right to free speech, the judge in your case may not. The court may issue a "gag order" against you for "going public" and may claim you are "endangering your child" with your actions. You may be advised that "for your child's protection" these proceedings are confidential. You can also be fined or jailed. Only you can decide if it is worth the risk.
Note: Many copy stores charge less than $5 for a poster sized color enlargement.
WHEN YOU'RE RIGHT, YOU RIGHT! Letter writing campaigns can be a wonderful tool. Write to your politicians, as well as to the politicians that represent every member of your extended family (parents, siblings, etc.) and to those of your friends. Chances are you will come up with a long list of Assemblymen, Congressmen, State Senators and U.S. Senators around the country. Keep your letter simple, but be concise; anything over two pages will generally not get read. State the problem (e.g. CPS is trying to force us to lie in order to get our child back.) Include a cc: section on the letter (that can be page three). In your letters to politicians outside your area, send a cover sheet that contains a statement like:
"I know you don't have the jurisdiction to help me but you represent people in my family that are directly affected by the situation described herein."
You may think, 'Well if they can't help then why should I waste my time and money?' The answer is simple: this is how laws get changed. Your politicians may sweep your concerns under the rug but when you send letters to politicians across the country you are holding your own representatives accountable. Your politicians must face their peers and explain what they are doing about YOUR problem! It puts pressure on them to do something! It also keeps you busy and focused on your case. You're doing something positive regardless of the direct results and it proves how hard you fought for your child. Someday your child may read those letters and know how much you cared.
CHECKING FOR PHONE TAPS/PHONE TRAPS. If you believe your phone may be tapped, call the phone company's repair center and ask them to check the line for taps/traps. Tell them about any unusual sounds (humming, clicking, etc.) you may be hearing. The phone company may be willing to run a signal that can detect most devices. If they refuse to check your line for you it may be an indication that your phone is tapped or it may just be company policy.
Even if your phone lines are clear, that doesn't mean it's safe to talk freely. It is still possible for someone to listen in at the phone company rather than through the lines near your home.
Watch what you say on cellular phones, cordless phones, and car phones. Those calls can be monitored with a scanner.
PARANOID??? Think again. They really are out to get you. Make copies of EVERYTHING relating to your case. If you have a friend or relative that lives out of state (that CPS is not aware of) send copies of everything to that person for safekeeping. Do NOT rely on the safety of a safety deposit box. The state can get a warrant to open the box and confiscate your "evidence" against them. Ideally, keep one copy at home and one copy close by and keep one copy out of state.
CONTACT YOUR COUNTY GRAND JURY. Many Grand Jury investigations of Child Protective Services are being done. The investigations are confidential; the public and CPS may be unaware of ongoing investigations. It is important to notify your county Grand Jury if CPS is violating your rights or not following their regulations. The Grand Jury may require a certain number of complaints before they will take action; your letter could be the one that will make the difference. Contacting the Grand Jury may help you and many others as well.