How Can Allegations of Child Abuse Affect Divorce/Custody?


Some say a parent’s role is to teach your child and shape who they become as an adult, but I think the most crucial aspect of the job is protecting your child. While it isn’t always easy to protect a child from outside influences because you can’t be around them 24/7, your role becomes even more difficult if you are sharing custody with another parent, and especially if you introduce new significant others and their family members into your and your child’s life. This frequently happens during or after a divorce and is a factor even if you never married the other parent. Something in your relationship with the other parent caused a breakdown, and often you no longer trust that the other parent will cooperate in protecting and, worse, may even abuse the child.


When people think of abuse, they typically reference news stories of physical or sexual abuse of children that the Department of Child and Family Services (DCFS) didn’t act to protect soon enough. Those stories need no further explanation. There are other types of abuse as well: psychological or emotional abuse (constant yelling at or in front of the child, threats or constant criticism causing mental anguish), neglect (failure to provide the child with basic necessities of life), abandonment (disappearing for a substantial period of time from the child’s life) and even substance abuse (drugs, alcohol, etc.) in the child’s presence can be an element of abuse of a child . These forms of abuse are more common and sometimes more difficult to detect because children often try to hide physical signs of their own suffering.


Sometimes the child may simply say something causing you to inquire further. Or the abused child’s behavior will change: they perform poorly in school, become withdrawn or don’t want to go places they’ve always enjoyed in the past. Once you detect something is changed, then you must determine what to do about it. Here are some options on how to proceed which are often used in conjunction with each other:


1. Get help from authorities ASAP: If there are signs of physical abuse (cuts, bruises, evidence of rape, etc.), get emergency medical treatment/assessment, document the injuries by taking pictures and contact your local police department to take a report and open an investigation. In cases of suspected sexual abuse, don’t forget to collect forensic evidence in the form of a Sexual Assault Forensic Evidence kit (SAFE).


2. Contact DCFS: Medical professionals and police are mandated reporters and in the event of abuse, automatically contact DCFS. Still, however, check – and in the unlikely event they haven’t, contact DCFS yourself. You should report any reasonable suspicion of abuse or neglect to DCFS. They will send a caseworker to investigate your allegations and determine if the allegations are “Unfounded,” “Substantiated” or if more information is needed. Sometimes this results in the filing of a Juvenile Dependency case by the County of Los Angeles to ensure the safety of the child. For more information about Los Angeles County DCFS, visit their website:


3. See if you qualify for a Domestic Violence Restraining Order: If the child does not require immediate medical care or there are no visible signs of abuse, there are still immediate actions you can and should take. One such action (which can also be utilized when physical abuse is present and documented) is a Domestic Violence Restraining Order (DVRO). Obtaining a restraining order can keep the abuser out of the house and away from the child, assuming certain criteria are met (the child resides with the abuser, even if not full time, or the abuser is the parent of the child, etc.). This is also a good way to protect yourself in the event you suspect a former spouse/significant other is perpetrating abuse and you are in fear they may do the same to you. A DVRO is one of the few court actions resulting in immediate protection restricting contact and denying the abuser access to a shared space (home, vehicle, the area surrounding school, etc.). While orders are temporary, usually 2-3 weeks until a Court again reviews the facts, the Court may [or may not] issue a permanent order; in the interim, temporary orders are very powerful and can be used to gain time for fear of further abuse.


4. If the Court denied the DVRO or didn’t make custody orders and the child is still subject to abuse: Get an attorney! An attorney can advocate your position to the court and know the tools you need, such as Minor’s Counsel and/or a Custody Evaluation. Minor’s Counsel is specifically an attorney for the minor child, pursuant to California Rules of Court §5.242, “Counsel is charged with the representation of the child’s best interest. The role of minor’s counsel is to gather evidence bearing on the child’s best interest and to present the evidence to the court. If the child requests, Minor’s counsel will present the child’s wishes to the court.”


Essentially, Minor’s Counsel will meet with the child, likely with both parents, review school and medical records, review all court documents, and thereafter make a report to the court regarding their recommendations.


Minor’s Counsel has the following rights: reasonable access to the child to seek affirmative relief on behalf of the child, notice to any court proceeding, take any action that is available to a party to the proceeding, be heard in the proceeding. Beyond the court, Minor’s Counsel can also access the child’s medical, dental, mental health, other health-care, school and educational records. They can inspect juvenile case files, interview school personnel, caretakers, health care providers, mental health professionals, and others who have assessed the child or provided care to the child, as well as interview mediators, receive reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, that has not been ordered by the court, assert or waive any privilege on behalf of the child, seek independent psychological or physical examination or evaluation of the child for purposes of the proceeding on approval by the court, receive child custody evaluation reports, not be called as a witness in the proceedings, request the court to authorize release of relevant reports or files concerning the child represented by the counsel, of the relevant local child protective services agency, and receive reasonable compensation and expenses for representing the child, the amount of which will be determined by the court.


5. Request a Custody Evaluation. The court has authority to appoint an expert to perform an evaluation under California Evidence Code §730 for the purpose of assisting in determining the health, safety, welfare and best interest of children with regard to disputed custody and visitation issues. A Custody Evaluation is performed by a neutral third party and the evaluator may simply prepare a report and the parents may agree the report is submitted to the court, or the evaluator may testify as a witness at a hearing or trial on the issue of custody.


Pursuant to California Rules of Court §5.220, each evaluation must include a written report which lays out the purpose of the evaluation, the procedures used to gather information, the scope, and distribution of the evaluation report, as well as the cost and payment of the evaluation.


There are various types of custody evaluations, based on the severity and complexity of the issues in the case. The cost of the evaluation varies based on the scope of the evaluation. The court may order a Parenting Plan Assessment (“PPA”), which takes place within one or two days. In the morning (or the full first day), there is an in-office interview with each parent (and the child) and then a report is quickly drafted and testimony provided to the court in the afternoon (or the next day). These evaluations are typically not ordered in cases of abuse. The county does provide custody evaluation services under California Family Code, §3118, for allegations of sexual abuse and your income determines whether you must pay a fee for these services.


In cases of abuse, a private custody evaluation may be necessary. While these are costly, they go further into allegations of the parents and many site to collateral resources, including the interview of siblings and other family members who spend time with the child, as well as teachers, significant others and any other person with whom the child interacts on a regular basis. A private custody evaluator can request records from school and medical providers and may conduct personality testing on parents and others living in the household. Because these evaluations are much more in-depth than the PPA and are not provided by the county, the cost can range anywhere from a few thousand to over ten thousand dollars, depending on the amount of time the evaluator spends on the issues, how far the evaluator travels, how many collateral resources are contacted.


The parties may agree to have the court order a custody evaluation, however, often both parties do not agree on the results. If that is the case, the party who disagrees has the option to obtain their own expert to refute the original expert. This is authorized under California Evidence Code, §733.


All in all, the most important thing to do when you suspect child abuse is contact authorities who can assist with assessment and protection of the child. In the event of suspected abuse, definitely seek medical care, contact authorities, seek protection get legal counsel to in making a determination of the child’s best interest.

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