Child Custody Disputes

An Annotated Review of the Research

Bala, N. & Schuman, J. (2000). Allegations of sexual abuse when parents have separated. Canadian Family Law Quarterly, 17, 191-241.

Nicholas Bala and John Schuman, two Queen’s University law professors, reviewed Canadian judges’ written decisions in 196 cases between 1990 and 1998 where allegations of either physical or sexual abuse were raised in the context of parental separation. Only family law cases were considered; child protection and criminal decisions were excluded. The study showed that the judges felt that only a third of unproven cases of child abuse stemming from custody battles involve someone deliberately lying in court. In these cases, the judges found that fathers were more likely to fabricate the accusations than mothers. Of female-initiated allegations, just 1.3% were deemed intentionally false by civil courts, compared with 21% when the man in the failed relationship brought similar allegations.

The cases involved 262 alleged child victims (74% of them alleged sexual abuse). Thirty-two percent of these children were under 5 years of age, 46% were 5 to 9 years of age, 13% were 10 or older; for 9% the age was not specified. About 71% of the allegations were made by mothers (64% custodial and 6% non-custodial), 17% were by fathers (6% custodial and 11% non-custodial), 2% were from grandparents or foster parents. In about 9% of the cases the child was the prime instigator of the allegations. This study found that fathers were most likely to be accused of abuse (74%), followed by mothers (13%), mother’s boyfriend or stepfather (7%), grandparent (3%) and other relatives, including siblings (3%).

A judicial finding on the balance of probabilities (the civil standard) that abuse occurred was made in 46 cases (23% of all cases). In 89 cases, the judge made a finding that the allegation was unfounded, while in 61 cases there was evidence of abuse but no judicial conclusion that abuse occurred. In 45 of the 150 cases (30% of the cases where abuse was not proven) the judge believed that it was an intentionally false allegation.

In the 89 cases where the court found that the allegation was clearly unfounded, the accusing party lost custody in 18 cases, though this was usually for reasons not directly related to the making of an unfounded allegation of abuse. In only one case was the accuser charged (and convicted) for false reporting (mischief) in connection with the false allegation, though in 3 other cases the accuser was cited for contempt of court in connection with denial of access. In the 51 cases where abuse was proved on the civil standard, access was denied in 21 cases, and supervised in 16. The abuser was criminally charged in only 3 of these 51 cases.

Note: This study may not be representative of all cases where abuse allegations are made after parents have separated, as in cases with strong evidence of abuse, the perpetrator is likely not to contest the issue of abuse in family law proceedings. This study may, however, give a good sense of the cases that are likely to be litigated in the family courts.

Benedek, Elissa P., & Diane H. Schetky. (1985). Allegations of sexual abuse in child custody and visitation disputes. In D. Schetky & E. Benedek (Eds.), Emerging Issues in Child Psychiatry and the Law. NY: Brunner/Mazel, pp. 145-56.

The authors provide a summary of their experience with 18 cases referred due to allegations of child sexual abuse (CSA) during custody or visitation disputes. The authors judged 10 of the 18 cases to involve false accusations of CSA, and documented CSA in the other 8 cases. The alleged offenders were fathers in all but two cases. In the cases of false accusation, the charges were uniformly brought by the parents, not the child. In confirmed cases, themes of the child’s play and drawings were generally consistent with the accusations. The authors note that false accusations of sexual abuse by children and their parents are rare; however, they do occur, particularly in custody cases.

NOTE: Faller reports that Benedek testified in Morgan V. Foretich , that she attempts to screen out true allegations of abuse prior to appearing as an expert for someone accused of CSA. As the cases in examined by Benedek and Schetky were drawn from their practice, the findings of 10 out of 18 cases being false would not represent the false rate for all cases with allegations in custody, but only the rate for cases already considered false or possibly false in the first place. [ee Faller, K. C. (2002). Child abuse and divorce: Competing priorities and agendas. In The Children’s bench book: Improving court responses to child victims of intra-familial violence and sexual abuse . (pp. 96-126). Boston, MA: Massachusetts Citizens for Children.]

Brown, T., Frederico, M., Hewitt, L., & Sheehan, R. (2000). Revealing the existence of child abuse in the context of marital breakdown and custody and access disputes. Child Abuse & Neglect, 24 (6), 849-859.

This article presents a unique research study which investigated how the Family Court of Australia dealt with management of child abuse allegations (any type of abuse or neglect) in custody and access cases. The authors reviewed court records of some 200 families where child abuse allegations had been made in custody and access disputes in jurisdictions in two states, observed court proceedings and interviewed court and related services’ staff. The findings showed that child abuse in the Family Court had doubled from 1993 — 1997. These cases had become a core component of the court’s workload without any public or professional awareness of this change. In addition, the researchers found that the abuse was usually real, with 70% involved severe physical and/or sexual abuse. Only 9% of allegations were judged to be false (same as found in Child Abuse Registry) — thus custody disputes were not associated with higher rates of false allegations. It was concluded that the courts and child protection services were not prepared to deal with the types of cases they were dealing with and often did not provide appropriate services to the families involved.

Ehrenberg, M.F., & Elterman, M.F. (1995). Evaluating allegations of sexual abuse in the context of divorce, child custody, and access disputes. In Tara Ney (Ed.), True and False Allegations of Child Sexual Abuse: Assessment and Case Management . NY: Brunner/Mazel, pp. 209-30.

This chapter focuses on the evaluation of child sexual abuse (CSA) allegations that occur in custody/access disputes. Historical and legal issues relevant to this problem are summarized, and research about the extent, nature, and validity of sexual abuse allegations in divorce is reviewed. Research findings suggest that improbable allegations are equally or more likely to occur during custody disputes than in cases where custody is not an issue. The authors present a range of divorce-related family dynamics as possible contexts for sexual abuse allegations: (1) abuse leading to divorce, (2) abuse revealed during divorce, (3) abuse precipitated by divorce, and (4) custody/access disputes. Strategies are presented for differentiating sexual abuse from divorce trauma, and characteristics of accusing and accused parents and aspects of their relationships with their children in probable and improbable cases are reviewed.

Elterman, M.F., & Ehrenberg, M.F. (1991). Sexual abuse allegations in child custody disputes. International Journal of Law & Psychiatry, 14(3), 269-86.

Abstract not available.

Faller, K.C. (1991). Possible explanations for child sexual abuse allegations in divorce. American Journal of Orthopsychiatry, 61(1), 86-91.

This study explores a range of dynamics leading to allegations of sexual abuse in divorce. A classification system is proposed based on a review of the literature, discussions with other mental health professionals, and a careful examination of a clinical research sample of 136 cases referred for diagnosis and treatment. The four identified dynamics resulting in allegations of sexual abuse during or after the dissolution of a marriage are as follows:

1. The mother finds about the sexual abuse and decides to divorce her husband;
2. Long-standing sexual abuse is only revealed during the marital breakup;
3. Sexual abuse is precipitated by the marital dissolution;
4. The allegation is false.

The largest proportion of cases were those in which the marital dissolution precipitated the sexual abuse, followed by those in which divorce triggered disclosure. The data suggests that 15% to 25% of allegations were false. It is concluded that mental health professionals should maintain an open mind and an appreciation of the range of circumstances and dynamics that might lead to a report of abuse during divorce.

Green, A.H. True and false allegations of sexual abuse in child custody disputes. Journal of the American Academy of Child Psychiatry, 25(4), 1986, 449-56.

Green describes a method of differentiating between true and false cases of sexual abuse in child custody disputes based on 11 referrals. Green determined that 36% of these allegations were false and suggests that false disclosures occur in the following situations:

• The child is “brainwashed” by a vindictive mother who fabricates the incest in order to punish the spouse.
• The child is influenced by a delusional mother who projects her own unconscious sexual fantasies onto the spouse.
• The child makes allegations based on their own sexual fantasies.
• The child falsely accuses the father of incest for revenge or retaliation.

Characteristics of false disclosures include:

• Details of sexual activity are obtained easily.
• The child is nondefensive and outspoken in his/her descriptions of sexual activity, without significant emotional change.
• The child uses adult terminology to describe the abuse.

The author suggests that the child psychiatrist should act as an advocate for the traumatized child in court. Case histories are presented which illustrate the typical problems and pitfalls encountered during these evaluations. Green notes that in a small percentage of cases, even the best trained experts will be unable to render a definitive opinion about whether or not sexual abuse has taken place.

Responses to Green’s Article:

Hanson, G. The sex abuse controversy (letter). Journal of the American Academy of Child and Adolescent Psychiatry, 27(2), 1988, 258.

Hanson and 18 cosigners offer concerns about Green’s approach to the evaluation process and his conclusion regarding factors that differentiate true and false accusations. The consensus of these clinicians working in the of child sexual abuse field is that: (1) empirical evidence does not support many of the claims made by Green concerning child’s allegations; and (2) the article contained many unsubstantiated claims that could mislead clinicians and legal decision makers.

Corwin, D., Berliner, L., Goodman, G., Goodwin, J., & White, S. Child sexual abuse and custody disputes: No easy answers. Journal of Interpersonal Violence, 2(1), Mar. 1987, 91-105.

Corwin and colleagues take issue with Green’s reliance on simplified approaches to the complex problem of alleged CSA in the context of child custody disputes. They assert that Green’s formulation is based on an inadequate database, biased sample, and unsupported conclusions and that his approach is likely to result in misdiagnosis and a failure to protect children who are both sexually abused and caught in custody battles. The authors discuss the limits of clinical impression, the difference between unfounded or unsubstantiated and false accusations of abuse, and the high prevalence of actual CSA in the setting of marital dissolution.

Hlady, L.J., & Gunter, E.J. (1990). Alleged child abuse in custody access disputes. Child Abuse & Neglect, 14(4), 591-3.

The authors reviewed the charts of all children involved in custody access disputes seen by Child Protective Services (CPS) at British Columbia’s Children’s Hospital in 1988. Of the 370 such children evaluated by CPS, 34 involved allegations of child sexual abuse (CSA) that arose during custody/access disputes. These children’s physical examinations were then compared with the 219 children seen during the same one-year period for alleged CSA not involving custody/access disputes. A similar percentage of positive physical findings were found in both groups. Physical evidence of CSA were found in 6 of the 34 (17.6%) custody cases and in 33 of the 219 (15%) noncustody cases. It is concluded that the concern that allegations of CSA that arise during custody/access disputes are likely to be false is not borne out by these findings.

Haskett, M.E., Wayland, K., Hutcheson, J.S., & Tavana, T. (1995). Substantiation of sexual abuse allegations: Factors involved in the decision-making process. Journal of Child Sexual Abuse , 4(2), 19-45.

The authors examined professional practices and decision-making procedures in investigation of child sexual abuse by interviewing child protective service (CPS) professionals regarding 175 allegations of abuse. It was found that characteristics of the child’s disclosure served as the primary basis for substantiation decisions, although medical evidence and affective and behavioral indicators also contributed to the decisions. In terms of investigatory procedures, anatomical dolls and drawings were rarely used, alleged offenders were interviewed in fewer than one-quarter of the cases, and medical and law enforcement consultations were obtained more frequently than mental health consultations.

Substantiated cases involved significantly older children, were more likely to involve intrusive types of abuse and children of minority race; and were less likely to involve a visitation or custody dispute. Case-workers were less certain of their decisions when allegations involved young children or custody disputes. In 9 unsubstantiated cases, the CPS worker felt that the reporter had malicious intent; six of these cases involved a custody dispute. CPS workers were more certain of their decisions when they substantiated a case than when they concluded that the allegations were not valid.

Jaffe, P. G., & Geffner, R. (1998).Child custody disputes and domestic violence: Critical issues for mental health, social service, and legal professionals,” In G. W. Holden, R. Geffner, et al. (Eds.). Children exposed to marital violence: Theory, research, and applied issues. (pp. 371-408). Washington, D.C.: APA science volumes.

Jones, D.P.H., McGraw, J.M. (1987). Reliable and fictitious accounts of sexual abuse to children. Journal of Interpersonal Violence, 2(1), 27-45.

The authors examined categories of reports of child sexual abuse as part of a two-phase study. In the first phase, 576 consecutive referrals of child sexual abuse to the Denver Department of Social Services were categorized as either reliable or fictitious. Of the total number of cases, 54% were found to be reliable reports, 22% had insufficient evidence to be substantiated, 17% were made on the basis of a legitimate concern but were found to have an alternative explanation than abuse, and 7% (6% by adults and 1% by children) were judged to be fictitious. In phase two, fictitious reports were examined in detail. It was found that certain clinical features appeared to mark these fictitious reports. These features included: (1) a lack of emotion on the part of the child who reported; (2) an absence of coercion and threat in the child’s account; (3) an absence of detail in the child’s report; and (4) the presence of preexisting PTSD in some of the subjects. In some cases, custody or visitation disputes were in progress when the allegation arose. The authors concluded that absolute conclusions about the validity of sexual abuse allegations are not possible in the absence of corroboration.

Jones, D.P.H., & Seig, A. (1988). Child sexual abuse allegations in custody or visitation disputes: A report of 20 cases. In E.B. Nicholson & J. Bulkley (Eds.), Sexual Abuse Allegations in Custody and Visitation Cases: A Resource Book for Judges and Court Personnel. Washington, DC: American Bar Association, pp. 22-36.

This article reports on 20 nonsecutive cases evaluated by the C. Henry Kempe Centre which involved both sexual abuse allegations and a parental custody dispute. In this clinical series, 70% of cases were found to be reliable and four (20%) of the cases appeared fictitious. This figure is higher than the 5-7% range reported in other contexts. The authors conclude that divorce and custody disputes seem to raise the likelihood of fictitious allegations, however, the authors suggest that since 70% of these cases were found to be reliable, that CSA allegations in custody disputes should not be summarily dismissed as false.

McGraw, J.M., & Smith, H.A. (1992). Child sexual abuse allegations amidst divorce and custody proceedings: Refining the validation process. Journal of Child Sexual Abuse, 1(1), 49-61.

This study describes 18 cases of child sexual abuse (CSA) allegations made during divorce and custody disputes. Initially only one of the cases investigated was believed to be founded by the sexual abuse evaluation team. After applying the clinical process of validation used at the Kempe Center in Denver, Colorado, the cases were subjected to further review and categorized as follows: (1) reliable accounts; (2) recantations; (3) unsubstantiated suspicions; (4) insufficient information; (5) fictitious reports by adults; and (6) fictitious reports by children.

Subsequent to applying this systematic process of validation, the number of cases categorized as founded increased to eight (44.4%). In two cases there was insufficient information to make a determination, and five were judged to be based on an unsubstantiated suspicion. Three cases were judged to be fictitious (16.5%), only one of which came from a child.

The dramatic increase in the number of substantiated cases of sexual abuse after the application of the process of validation is attributed to three factors: (1) the evaluation team had been less systematic in their application of the initial process of validation than their protocol would imply; (2) the system used by the team was less systematic and detailed than the Kempe Center process; and (3) the caseworkers had pre-judged allegations as false, because these allegations were made in the context of a child custody dispute. The authors recommend that a systematic clinical process of validation should be adhered to in all cases of CSA allegations.

McIntosh, J.A., & Prinz, R.J. (1993). The incidence of alleged sexual abuse in 603 family court cases. Law and Human Behavior, 17(1), 95-101.

A one-year caseload of a county family court was systemically evaluated to determine the extent of the problem of child sexual abuse allegations in child custody and access disputes. A total of 603 custody/access cases were identified from a review of a total of 1,675 family court judgements that were issued in 1987. Court files revealed that only 2% of contested custody/access disputes involved sexual abuse allegations. The accuser was the mother in three cases, the father was the accuser in one case, and in one case there were cross allegations (both parents accused each other). The accused perpetrator of sexual abuse was the biological father in two of the 5 cases. The authors note that their findings do not support the contention that sexual abuse allegations are commonplace in child custody disputes.

Paradise, J.E., Rostain, A.L., & Nathanson, M. (1988). Substantiation of sexual abuse charges when parents dispute custody or visitation. Pediatrics, 81(6), 835-9.

Recent news reports have implied that charges of child sexual abuse (CSA) during divorce are often deliberately falsified. Because the media reports have primarily been anecdotal, CSA cases in a hospital-based consecutive series and one author’s practice were systematically reviewed. Abuse allegations made within the context custody or visitation dispute (39% of the sample) were compared with cases in which custody or visitation was not an issue. Cases involving custody problems were found to involve younger children (5.4 vs 7.8 years). Sexual abuse allegations were substantiated less frequently when there was concomitant parental conflict (nonsignificant) but were nevertheless substantiated more than half of the time.

Penfold, P.S. (1995). Mendacious moms or devious dads? Some perplexing issues in child custody/sexual abuse allegation disputes. Canadian Journal of Psychiatry, 40(6), 337-41.

This article reviews relevant literature about false sexual abuse allegations arising in child custody disputes. The author concludes that contrary to much popular and professional opinion, sexual abuse allegations are found in only 2% of child custody disputes, and, of these, 8% to 16.5% are false. In addition, the report of the Law Society of British Columbia Gender Bias Committee has found gender inequality is pervasive in the legal and justice system in British Columbia and the majority of concerns raised reflected discrimination against women. While false allegations arise for a variety of reasons, the word “false” can imply both erroneous and deceitful activities. This ambiguity, along with gender bias, may lead to disbelief of, and blame towards, parents who report sexual abuse in the context of a dispute about custody or access.

Sink, F. (1988). Studies of True and False Allegations: A Critical Review. In E.B. Nicholson & J. Bulkley (Eds.), Sexual Abuse Allegations in Custody and Visitation Cases: A Resource Book For Judges and Court Personnel. Washington, DC: American Bar Association. pp. 37-47.

Sink reviews 5 studies pertaining to false allegations of child sexual abuse during custody/visitation disputes. Because these studies are based on referrals, the author cautions that they offer only limited information about the natural occurrence of false allegations in the population. The ability to document a number of cases of false reports does not suggest that such reports are in fact frequent, only that a particular clinic or individual may be known for their ability to assess credibility of reports and therefore may receive a disproportionate number of suspect reports. In addition, the absence of corroborating information does not automatically lead to the conclusion that an allegation must be false.

Four theories are discussed as possible reasons for the occurrence of false allegations in custody cases:

1. Overanxious parent
2. Shared belief between parent and child
3. Suggestible (brainwashed) child
4. Response reinforcement pattern (theory that explains situations where children act in sexualized ways suggestive of sexual abuse when none has occurred).

There are 4 reasons true disclosures may be made during divorce or custody disputes:

1. Some children may have less contact with an abusive parent and feel less threatened or inhibited in about revealing secrets.
2. Some children may have more time alone with the abusive parent and a heightened sense of vulnerability may result in a disclosure by the child.
3. The stress and anxiety of the divorce may increase the closeness between the child and a family member in whom they decide to confide secrets about how the family used to be.
4. A parent may not have been abusive before, but under the stress of the divorce may turn to the child for nurturance and affection.

Thoennes, N, & Tjaden, PG. (1990). The extent, nature, and validity of sexual abuse allegations in custody and visitation disputes. Child Sexual Abuse & Neglect, 14(2), 151-63.

The Association of Family and Conciliation Courts Research Unit, Denver, CO, analyzed information from mail and telephone surveys, personal interviews with legal and mental health professionals, and empirical data from 12 domestic relations courts in the U.S. Data from 9,000 families in custody/visitation disputes indicated that only a small proportion of contested custody and visitation cases involve sexual abuse allegations. Records maintained by family court workers place the figure at less than 2%. A sample of 169 cases for which data were gathered from court counselors, family court, and CPS agency files found that accusations were brought by mothers (67%) and fathers (28%) and third parties (11%). Fathers were accused in 51% of all cases, but allegations were also made against mothers, mothers’ new partners, and extended family members. In the 129 cases for which a determination of the validity of the allegation was available, 50% were found to involve abuse, 33% were found to involve no abuse, and 17% resulted in an indeterminate ruling. Four factors were significantly associated with the perceived validity of the abuse report: age of the victim, frequency of the alleged abuse, prior abuse/neglect reports, and the amount of time elapsing between filing for divorce and the emergence of the allegation.

Trocme, N., McPhee, D., Tam, K. K., & Hay, T. (1994). Ontario Incidence Study of Reported Child Abuse and Neglect . Toronto: Institute for the Prevention of Child Abuse.

http://www.canadachildwelfareresearch.org/publications/pdf_files/ois_files/ois.pdf

The 1993 Ontario Incidence of Study of Child Abuse revealed that 9% of the 42,000 physical and sexual abuse and neglect allegations involved separated parents. Mothers made two thirds of those allegations, while fathers made a third of the allegations.

Of the allegations made by custodial mothers against noncustodial fathers, 23% were considered substantiated by the child protection workers, 27% suspected and 50% unfounded, but only 1% were considered to be intentionally false. The police investigated in 30% of the cases, and criminal charges were laid against the suspected male abuser in 8% of the cases.

In cases in which the father alleged that the custodial mother had abused or neglected the child, only 10% were considered by child protection workers to be substantiated, 18% suspected and 72% unfounded, while the rate of reports believed to have been maliciously made was 21%. No abuse related criminal charges were laid against mothers.

Thus while custodial mothers made more reports of suspected abuse against noncustodial fathers, the allegations of abuse made by noncustodial fathers were less likely to be considered founded and more likely to be believed to have been made maliciously.

Trocme, N., MacLaurin, B., Fallon, B., Daciuk, J., Billingsley, D., et al. (2001). Canadian Incidence Study of Reported Child Abuse and Neglect: Final Report. Ottawa, Ontario: Minister of Public Works and Government Services Canada.

http://www.hc-sc.gc.ca/pphb-dgspsp/publicat/cisfr-ecirf/pdf/cis_e.pdf

Based on 1998 Canada wide child protection agency data, 11% (1, 568) of all child abuse investigations arose in the context of a parental custody or access disputes.

However, across conditions most unsubstantiated reports were considered to have been made in good faith, only 4% of all allegations of maltreatment (an estimated 5,322) were judged to have been intentionally false. When abuse allegations were raised by one parent against another, 7% were judged to be “unsubstantiated and maliciously made” (p. 96). However, the researchers did not examine how many parental reports were made in the context of a custody dispute. Thus, it is impossible to determine if parental reports of abuse that arose during a custody dispute were more likely to be deemed false compared to parental reports that arose at other times.

Editor’s note: It is difficult to determine whether the lower level of substantiation during access disputes is based on valid determinations or whether it reflects the increased level of skepticism that investigators have reported that they have for allegations arising in the context of custody cases. However, it is important to note that the vast majority of allegations made by one parent against another were not found to involve malicious intent.

Trocme, N., & Bala, N. (2005). False allegations of abuse and neglect when parents separate. Child Abuse & Neglect, 29(12), 1333. (PDF)

Abstract
The 1998 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS-98) is the first national study to document the rate of intentionally false allegations of abuse and neglect investigated by child welfare services in Canada. This paper provides a detailed summary of the characteristics associated with intentionally false reports of child abuse and neglect within the context of parental separation.

Method: A multistage sampling design was used, first to select a representative sample of 51 child welfare service areas across Canada. Child maltreatment investigations conducted in the selected sites during the months of October-December 1998 were tracked, yielding a final sample of 7,672 child maltreatment investigations reported to child welfare authorities because of suspected child abuse or neglect.

Results: Consistent with other national studies of reported child maltreatment, CIS-98 data indicate that more than one-third of maltreatment investigations are unsubstantiated, but only 4% of all cases are considered to be intentionally fabricated. Within the subsample of cases wherein a custody or access dispute has occurred, the rate of intentionally false allegations is higher: 12%. Results of this analysis show that neglect is the most common form of intentionally fabricated maltreatment, while anonymous reporters and noncustodial parents (usually fathers) most frequently make intentionally false reports. Of the intentionally false allegations of maltreatment tracked by the CIS-98, custodial parents (usually mothers) and children were least likely to fabricate reports of abuse or neglect.

Conclusions: While the CIS-98 documents that the rate of intentionally false allegations is relatively low, these results raise important clinical and legal issues, which require further consideration.