False Accusations in Child Custody
Are you facing false allegations that have led to protective orders and a temporary restraining order? Do you suspect that you are the victim of an abuse excuse for changing child custody in the family courts? Why not try this?
What should you know about falsely being accused?
Falsely being accused of domestic violence or child abuse immediately changes everything in your life. You can lose your job, your friends, and this can cost you hundreds of thousands of dollars just to defend yourself. The public and the domestic relations court will consider you guilty until proven innocent. Johnny Depp recently said he spent ten million dollars on attorneys for his defamation case against his ex-wife Amber Heard.
False accusations can cause a lifetime of damage not just to your career but also to your parent-child relationship and other relationships. Your life can turn into one crisis after another.
The attorneys might make you feel like you should give in and accept a deal even when you didn’t do what you are being accused of.
False Accusations in Child Custody
- What Should You Know About Falsely Being Accused?
- What is a False Accusation?
- What Happens to my Child Custody Rights if I Make a Plea Deal and Accept the Claims?
- What Does Typical Felony Probation Include?
- What Does a Judge Say When You Make a Plea Deal?
- What Does a Plea Deal Look Like?
- Can I Sue the Person Making the False Accusations?
- How likely is it that I will be successful if I Sue the Person Making the False Claims?
- Is the #MeToo Movement Dead?
- What are the Rights of the Accused in Texas?
- The Rights of the Accused in Texas?
Simple, Easy Steps for Fighting Domestic Violence and Child Abuse Allegations?
- What is a False Allegation of Sexual Abuse of a Child?
- Outline for Child Abuse Sexual Allegations Made Against Another Family Member Residing in Your House
- Opposing Counsel Failed to Prove to the Court
- Additional Items You Might Need to Include
- Questions for Testimony for a Parent Facing Child Abuse or Sexual Abuse Allegations
What You Have Successfully Accomplished?
What is a false accusation?
A false accusation is a claim of wrongdoing otherwise not supported by facts and where there is insufficient supporting evidence to determine whether it is true or false. False accusations can fall into three categories: 1. A completely false allegation. The events did not occur. 2. The allegation describes events that did occur, but the accused person is innocent. 3. The allegation contains some events that did happen and includes events that did not happen.
What happens to my child custody rights if I make a plea deal and accept the claims?
Making a deal will affect your rights and time with your children. For instances, if you have been accused of withholding your child from the other parent and are being charged with abduction, neglect, domestic violence, or sexual abuse, and are facing criminal charges, making a plea deal would include a finding of guilt. The judge will read you a statement to be sure that you understand what you are agreeing to. But the judge is not going to explain all of the other consequences of accepting the criminal charges.
What does typical Felony Probation include?
- paying victim restitution,
- performing community service,
- random drug testing,
- completing drug or alcohol treatment,
- attending regular meetings with a probation officer,
- paying court costs,
- providing prior consent to police searches,
- avoiding certain people, and
- refraining from another criminal offense.
What does a judge say when you make a plea deal?
The statement that the judge reads into the California record will generally look something like this. The following record is from an abduction conviction and is not the record in total (identities are protected):
DEFENDANT ADVISED OF AND PERSONALLY AND EXPLICITLY WAIVES THE FOLLOWING RIGHTS:
TRIAL BY COURT AND TRIAL BY JURY
CONFRONTATION AND CROSS-EXAMINATION OF WITNESSES;
SUBPOENA OF WITNESSES INTO COURT TO TESTIFY IN YOUR DEFENSE;
DEFENDANT ADVISED OF THE FOLLOWING:
THE NATURE OF THE CHARGES AGAINST HIM/HER, THE ELEMENT OF THE OFFENSE IN THE INFORMATION AND POSSIBLE DEFENSES TO SUCH CHARGES;
THE POSSIBLE CONSEQUENCES OF A PLEA OF GUILTY OR NOLO CONTENDERE, INCLUDING THE MAXIMUM PENALTY AND ADMINISTRATIVE SANCTIONS AND THE POSSIBLE LEGAL EFFECTS AND MAXIMUM PENALTIES INCIDENT TO SUBSEQUENT CONVICTIONS FOR THE SAME OR SIMILAR OFFENSES;
THE EFFECTS OF PROBATION;
THE COURT FINDS THAT EACH SUCH WAIVER IS KNOWINGLY, UNDERTANDINGLY, AND EXPLICTLY MADE; COUNSEL JOINS IN THE WAIVERS
THE DEFENDANT PERSONALLY WITHDRAWS PLEA OF NOT GUILTY TO COUNT 01 AND PLEADS NOLO CONTENDERE WITH THE APPROVAL OF THE COURT TO A VIOLATION OF SECTION 278.5(A) PC IN COUNT 01. THE COURT FINDS THE DEFENDANT GUILTY.
COURT FINDS THAT THERE IS A FACTUAL BASIS FOR DEFENDANT’S PLEA, AND COURT ACCEPTS PLEA
What does a plea deal look like?
While plea deals can be different. There are some standard things that typically get ordered in each one.
Once you are found to be guilty if you are in a child custody suit, you could be completely cutoff from any contact with your child for a long period of time, sometimes even permanently. It could be years before you see or talk to your child. This can have a tremendous affect on your relationship with that child even if you were innocent the entire time.
You will probably be restricted from seeing or talking to your children for as long as the protective order and restraining order is in force, and until the orders expire by operation of law. These orders can go on longer than you initially might have been told. The orders can be extended and last even longer than the initial order and go on for as many years as the judge continues to agree to renew these restrictions unless these renewals are restricted by statute.
Once you have been declared guilty in the plea deal phase, you move on to the sentencing phase. It is the sentencing that will determine the terms and conditions of the jail or probation sentence. It might look something like the following:
AS TO COUNT (01):
DEFENDANT PLACED ON FORMAL PROBATION FOR A PERIOD OF [years are entered here according to statute] AND UNDER THE FOLLOWING TERMS AND CONDITIONS SERVE ___[number of days are entered here] DAYS IN ________[name of jail is entered here] JAIL DEFENDANT GIVEN TOTAL CREDIT FOR ___ DAYS IN CUSTODY ___ DAYS ACTUAL CUSTODY AND ___ DAYS GOOD TIME/WORK TIME
PLUS $40.00 COURT OPERATIONS ASSESSMENT (PURSUANT TO 1465.8(A)(1) P.C.)
$30.00 CRIMINAL CONVICTION ASSESSMENT (PURSUANT TO 70373 G.C.)
-THE DEFENDANT IS TO PAY A RESTITUTION FINE PURSUANT TO SECTION 1202.4(B) PENAL CODE IN THE AMOUNT OF $240.00
-THE DEFENDANT SI TO PAY A PAROLE/POSTRELEASE COMMUNITY SUPERVISION/MANDATORY SUPERVISION RESTITUTION FINE PURSUANT TO SECTION 1202.4(B) PENAL CODE IN THE AMOUNT OF $240.00 SAID FINE IS ORDERED STAYED UNLESS PAROLE, POSTRELEASE COMMUNITY SUPERVISION OR MANDATORY SUPERVISION IS REVOKED.
-PAY THE COSTS OF PROBATION SERVICES (PURSUANT TO 1203.1B P.C.) TO THE PROBATION OFFICER I NTHE AMOUNT THE PROBATION OFFICER SHALL PRESCRIBE.
-COPY OF THE PROHIBITED PERSONS NOTICE AND POWER OF ATTORNEY FOR FIREARMS RELINQUISHMENT, SALE OR DISPOSAL FORM ISSUED TO DEFENDANT PURSUANT TO PENAL CODE SECTION 29800.
-STAY AWAY FROM VICTIM, WITH EXCEPTION OF ANY VALID FAMILY LAW VISITATION ORDER.
-OBEY THE PROTECTIVE ORDER ISSUED IN THIS OR ANY OTHER CASE.
-COOPERATE WITH THE PROBATION DEPARTMENT.
-SUPPORT DEFENDANTS AS DIRECTED BY THE PROBATION OFFICER.
-SEEK AND MAINTAIN TRAINING, SCHOOLING OR EMPLOYMENT AS APPROVED BY THE PROBATION OFFICER
-MAINTAIN RESIDENCE AS APPROVED Y THE PROBATION OFFICER.
-SUBMIT PERSON AND PROPERTY TO A SEARCH AT ANY TIME OF THE DAY OR NIGHT BY ANY LAW ENFORCEMENT OFFICER OR PROBATION OFFICER WITH OR WITHOUT A WARRANT OR PROBABLE CAUSE.
-ENROLL WITHIN 30 DAYS AND SUCCESSFULLY COPMLETE A 52-WEEK DOMESTIC VIOLENCE TREATMENT PROGRAM APPROVED BY THE PROBATION DEPARATMENT. ATTEND ALL COUNSELLING SESSIONS, KEEP ALL PROGRAM APPOINTMENTS AND PAY ALL PROGRAM FEES IN ACCORDANCE WITH YOUR ABILITY TO PAY.
-ENROLL WITHIN 30 DAYS AND SUCCESSFULLY COMPLETE A 26 WEEK APPROVED PARENTING SKILLS PROGRAM.
-OBEY ALL LAWS AND ORDERS OF THE COURT, COURT ORDERS AND FINDINGS;
-OBEY ALL RULES AND REGULATIONS OF THE PROBATION DEPARTMENT
-REPORT TO THE PROBATION OFFICER WITHIN 48 HOURS OF TODAY
-COURT ADVISES DEFENDANT OF HIS APPEAL/PAROLE RIGHTS.
-PURSUANT TO PC SECTION 296 THE DEFENDANT IS ORDERED TO PROVIDE BUCCAL SWAB SAMPLES, A RIGHT THUMB PRINT, A FULL PALM PRINT IMPRESSION OF EACH HAND, ANY BLOOD SPECIMENS OR OTHER BIOLOGICAL SAMPLES AS REQUIRED BY THIS SECTION FOR LAW ENFORCEMENT IDENTIFICATION.
ALL FINES, FEES AND COSTS ARE TO BE PAID THROUGH THE PROBATION DEPARTMENT.
THE DEFENDANT IS TO CONTINUE ON ELECTRONIC MONITORING FOR AN ADDITIONAL 120 DAYS.
THE DEFENDANT WILL BE REQUIRED TO PAY VICTIM RESTITUTION IN AN AMOUNT AND MANNER AS DETERMINED BY PROBATION
THE COURT WILL RETAIN JURISDICTION OVER THE ISSUE OF RESTITUTION SHOULD AN ISSUE ARISE.
COUNT (01): DISPOSITION: CONVICTED
Can I sue the person making the false accusations?
Yes, you can, if you do so within the statute of limitations. Suing is very expensive and if you are also in a child custody suit, your resources might already be strained to the maximum.
How likely is it that I will be successful if I sue the person making the false claims?
There have been many people who have successfully sued their accuser. For instance, just recently Johnny Depp sued his ex, Amber Heard, who had accused him of sexual abuse. He won despite the fact that their relationship was clearly volatile and he had plenty of flaws that were exposed during the trial, namely drinking alcohol to avoid their arguments and prescription drug addiction, which he remedied with treatment.
Suing the accuser could be restricted by statute. There may be victim laws that protect the victim from being sued until you beat the charges or the charges are dropped. Since the #MeToo movement, it has been very difficult to require the accuser prove your guilt. It looks like trends are starting to change that with the recent defamation ruling in the Depp trial where Amber Heard spent several weeks on the stand accusing Johnny Depp of sexually assaulting her and rape. In most cases, however, you will have to wait until either the criminal charges are dropped or you win at trial before you can think about suing your accuser.
Is the #MeToo movement dead?
Since the Depp vs. Heard lawsuit, many have said that questioning your accuser now carries a little less stigma with it. Now that Depp was successful with suing his accuser it is possible that more men who have been falsely accused will have an easier time questioning the person accusing them and demanding evidence of the abuse. Prior to this time, it was taboo to question the accuser. Questioning the accuser was likened to not believing the victim. One of the things that Depp complained about was being seen as guilty until proven innocent. Depp claimed that Disney was guilty of believing Depp to be guilty and firing him from the Pirates of the Caribbean franchise just six days after Amber Heard published her op-ed making claims she was a sexual abuse survivor.
What are the rights of the accused in Texas?
Texas Code of Criminal Procedure lays out the various rights of the accused in Texas:
Art. 1.05. RIGHTS OF ACCUSED. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself. He shall have the right of being heard by himself, or counsel, or both; shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. No person shall be held to answer for a felony unless on indictment of a grand jury. (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.)
The Rights of the Accused in Texas
1. You have the right to a speedy public trial;
2. You the right to have an impartial jury;
3. You have the right to know what you have been charged with (you have a right to the document that charges you with a crime as well);
4. You have the right to remain silent, and the right not to incriminate yourself (5th Amendment);
5. You have the right to demand that the witnesses that have accused you of a crime come to court and state the evidence against you before the jury;
6. You have a right to be formally charged by a grand jury if you are charged with a felony offense.
These 6 rights are the basic rights of the accused criminals in Texas and across the United States generally. Your criminal defense attorney should be intimately familiar with these rights. Make sure your attorney protects these rights and protects you.
Simple, Easy Steps for Fighting Domestic Violence and Child Abuse Allegations…
Did you know that it is the court’s duty to ensure your rights are protected regardless of what has been alleged. That includes when the safety of a child is at stake.
Texas law has held that “actions which break the ties between a parent and child ‘can never’ be justified without the most solid and substantial reasons.” Wiley v. Spratan, 543 s.w.2D 349, 352 (Tex. 1976) (quoting State v. Deaton, 54 S.W. 901 (Tex. 1900))
In this post you will find some sample questions for your attorney to ask you in testimony to help you prove to your court that you did not neglect your duties to your child, and that the court has a duty to stop withholding your child from you.
Are all child abuse or sexual abuse allegations false? Of course not. However, false or not if the child was facing some kind of abuse in the home that the parent has remedied, but the other parent continues to pursue court punishment in the form of a change in custody and the parent being affected doesn’t receive proper protections from the court, there can be expensive and far reaching consequences to that parent and the child. Many parents don’t know and don’t receive protection from their attorneys in the way that we describe in this post. In fact, we don’t believe that most parents are ever told that they have a right to remedy and cure the situation prior to the child being removed from them for extended periods of time or even permanently without consenting to a bunch of court-ordered invasions of privacy. These invasions of privacy might come in the form of a court appointing an amicus or a guardian ad litem, or the court ordering custody evaluations, social studies, or home studies.
The following is a portion of a sample outline that Sherry Palmer with Fix Family Courts recently created to reflect how to address when one of the children accuses another of the children of sexual relations with them.
Did you know that, according to CPS, sex between step-siblings is not uncommon. There are no specifics in this post that identify any particular family.
This case outline is used for getting your child back when a court has taken the child due to either false allegations or allegations that related to conditions that no longer exist.
What is a false allegation of sexual abuse of a child?
FALSE ALLEGATIONS: A false allegation of child sexual abuse is an accusation that a person committed one or more acts of child sexual abuse when in reality there was no perpetration of abuse by the accused person as alleged. Such accusations can be brought by the alleged victim, or by another person on the alleged victim’s behalf.
The outline can be used after CPS was contacted and closed their case. It can be used if CPS did not pursue a case in court. It can be used if CPS is pursuing a case in court.
This outline below is set up to be used when CPS has closed their case but opposing counsel and your ex are continuing to ask the court to continue the seizure of your child. And it is also used for when your ex is asking the court to to impose continued restrictions on you and your child. And may even be asking to appoint an amicus or a guardian ad litem to do further exploratory searches and civil investigations at further financial cost to you.
This outline helps you fight against the idea that the court has to put “cautious” orders in place and that the court has to continue to dig into your private life or is even authorized to do so based on an allegation that didn’t develop, is unproven, or the conditions no longer exist. This outline also help you preserve rights and lay the foundation for a mandamus or an appeal if the court fails to restore yours and your child’s rights.
The court does NOT have legitimate authority to violate your fundamental rights because of an abundance of caution. In fact, the court has a federal duty to use an abundance of caution to protect your rights, exactly the opposite of what they are actually doing.
OUTLINE FOR CHILD ABUSE SEXUAL ALLEGATIONS (OR CONDITIONS THAT NO LONGER EXIST) MADE AGAINST ANOTHER FAMILY MEMBER RESIDING IN YOUR HOUSE:
First you have to know what you are proving. Many parents want to prove that the other parent is a liar. You might think that this will relieve you of the burdens of the court and the court will turn on your ex. Ignoring the allegations and not addressing them properly regardless of how set you are that the allegations are lies will hurt you and your child more! Most of the time you will have limited time in this type of hearing, so we suggest you start with proving the following: (Most likely the other side will go first so you want to be looking for these things so that you can prove it in your testimony to the court.)
It never hurts to remind the court precisely what the standards are and who must prove what.
Opposing counsel failed to prove to the court:
- that there is continuing danger to the physical health or safety of the child if the child is returned home OR that there is evidence of sexual abuse and that the child is at substantial risk of future sexual abuse,
- that it is contrary to the child’s welfare to remain in the father’s home,
- that reasonable efforts were made to prevent or eliminate the need for removal. Fam. Code Sec. 262.107 (Even though this is the code that applies to CPS, use it as your guide for what the other side needed to prove and for what the court has to show on the record.)
Texas Family Code, Chapter 262.
If Opposing Counsel and the Court, CPS, or any other third party fail to provide sufficient evidence required by 262.107, the court lacks the discretion to do anything other than immediately return the child to your home and restore your rights that you had previous to the allegation.
Remember, broad general allegations of harm are never sufficient under the law. They must prove specific harms that you have received specific written notice of. Object to broad undefined and unprovable references to harm.
IF CPS HAS RULED OUT or was UNABLE TO DETERMINE whether any sexual abuse occurred and closed your case and the court is refusing to return your child: You might want to add an abuse of discretion argument something like, the court is abusing their discretion by exceeding the limitations of the family code with respect to an allegation that has gone not only unproven but also dropped and RULED OUT or UNABLE TO BE DETERMINED by CPS. The court abuses its discretion by impermissibly reversing the burden on fundamental rights limitations. The court abuses its discretion by failing to proceed in a manner that protects the constitutional rights of the parties.
NO sexual assault has been proven according to section 22.011. Opposing Counsel is using this court for the purpose of changing child custody. The conditions that this court purportedly are attempting to protect the child from no longer exist. These unproven allegations are not grounds to change custody not even in a temporary order that exceeds more than 14 days.
If the court limits your rights based upon allegations of harm to the child, the court is punishing past acts with violations of fundamental rights which the court is not permitted ot do. When the court punishes, the standards change.
Additionally, you might need to include:
- Appointing an amicus or a guardian ad litem is a 4th amendment violation if they are conducting warrantless searches into your private life, going on fishing expeditions, or conducting civil investigations on behalf of the court or the child. (You might have to ignore a judge’s eye rolling or the other side trying to make you look and feel like you are a horrible person for fighting the court.)
- The applicable Texas statutes are vulnerable to constitutional attack because they establish broad exploratory searches that are always unconstitutional because the constitution requires search orders to be specific.
- Assert the specific fundamental rights you believe are subject to being infringed by the court. Ask the court for a determination of what process you are due as a matter of federal due process law. This imposes a duty on the court to determine precisely what process is due and it is an abuse of discretion for your court to fail to perform this task.
- Ask the court for a constitutional analysis of the substantive guarantees that apply in your case and for demonstration in the record that the court has complied with all substantive rights guarantees before imposing any limitations on fundamental rights. It is an abuse of discretion for the court to fail to provide any applicable guarantee.
- Ask the court for equal protection justification where the court treats your rights with less respect than it treats the rights of other civil litigants genrally. Don’t get into the married vs divorced parents rights issue except to say that such classification punishes the exercise of fundamental rights. Focus on the protections that are due to all civil litigants.
QUESTIONS FOR TESTIMONY FOR A PARENT FACING CHILD ABUSE OR SEXUAL ABUSE ALLEGATIONS:
(Add any additional questions that demonstrate you have complied with your state statute to the best of your ability, that you have not been neglectful, that they failed to meet the burden the statute requires for them to ask the court to act, and if your statutes do not have constitutional requirements in them that you are asserting constitutional protections and requesting proper due process be employed prior to any findings being made, restraints or deprivations being ordered.)
Q: Did the other parent tell you that there was any concern that there might be something inappropriate sexually going on with your child with someone residing in your home?
Q: When did you find out that your child was claiming that someone was doing something sexual with them?
Q: What did you do after you found this out?
Q: Have you removed any possibility that there is any opportunity for this to happen again in your home?
Q: What have you done to ensure that this cannot happen in your home?
Q: Did this court provide you with any opportunity to cure the situation before removing your child from your home?
Q: Do you have protective measures in your house to protect your child from accessing porn sites on their computer at your house?
Q: Do you have protective measures in your house to protect your child from accessing porn or contacting unknown adults at your house from any phones?
Q: Had you informed the other parent in the past to make sure that she take protective measures with your child as well?
Q: Did the other parent do anything that you suggested? Or did the other parent tell you that it was not necessary?
Q: In your opinion, did the other parent take appropriate protective action?
Q: Do you feel that you have taken appropriate protective action?
WHAT YOU HAVE SUCCESSFULLY ACCOMPLISHED:
- You have satisfied the child protection statutes.
- You have provided reason that playing it cautious is not an option for the court nor appropriate and that cautious orders will be challenged as violating the statute* and violating yours and your child’s constitutional rights (list out the rights being violated and that apply to your specific case. For example, your 4th amendment rights if the child is being seized beyond 14 days and without a proper warrant, 1st Amendment rights that protect your parent-child association, 14th Admendment rights, 5th Amendment rights to not incriminate yourself, etc).*
- You are making it clear to the court that you are not consenting to any burdensome expenses for any exploratory searches when you assert your 4th amendment protections. This allows you to object to appointments of court-appointed experts like attorney ad litems (child’s counsel) and guardian ad litems prior to the court meeting the proper constitutional requirements.
- You have created a record that you can use if you need to challenge the court’s decision in the appellate court.
- You have set the tone for future proceedings that you are not going to take this laying down, that you are not going to be easily taken advantage of, and that you know your rights, you know that your rights apply, and you aren’t going to accept the lies that your rights don’t apply to these proceedings.
- You have created the conditions for the judge to make the right decisions.
- You have created conditions for yourself that allow you to explore other options of challenging the judge without having to wait out delays of unknown lengths of time and unrestrained expenses that the judge could try to impose, like mandamus, injunctive relief.
- You have opened the doors to freeing yourself from abuse of power. Abuse of power is also used in the form of what the courts call “cautious” orders. These so-called cautious orders are not usually constitutional. There is reason for the constitutional protections. It is to protect you and your child from the harm that comes from government over extending themselves into your private life.
- You are demonstrating to the court how your rights protect you so you can protect your child.
- You are fulfilling the first requirements to preserving error by putting the judge on notice and protecting yourself if the judge refuses to protect your rights.
- To end the litigation as quickly as possible so that the least amount of damage and harm is caused to you and your child, to your parent-child relationship, and to end the seizure of your child and your rights, and to prevent unconstitutional actions that courts are tempted to use when a parent does not know their rights or how to use them.
- To protect you and your family from further harm from a court that will separate you from your child and your rights for indefinite periods of time.
- To protect you and your family from further financial harm from a court that will order and impose excessive financial burdens in the form of expensive discovery through court-appointed experts, social studies, custody evaluations, psychiatric evaluations, increased child support, more alimony/spousal support, and take advantage of the fact that your ex made an allegation, regardless of whether it was provable.
- To protect your privacy from a court that will dig into your private family life just to try and see if there is something they can use to justify further violating yours and your child’s rights. End the regular appointment of GALs, custody evaluators, and ad litems.
- To protect you and your child and the rest of your family from the harm and damage that an overly zealous and overly cautious court can cause by making overly broad orders that infringe fundamental rights, and constant delays and continuances.
- To use your rights to protect you and your child from all of this so that you can protect your child as you see fit.
- To use your rights to resolve the situation faster and with less financial burden.
- To demonstrate to the court that you understand your constitutional rights and you are preparing to overturn any court errors on appeal. Many attorney’s claim this is telegraphing that you expect to lose, they are wrong. You are sending the exact opposite message that you know you will win if the law is applied fairly and you plan to push the issue if the court acts unfairly.
Make sure that if there are conditions that exist that would keep you from your child that you resolve these as quickly as possible. Courts are supposed to allow rehabilitation of your parent-child relationship.
Once you prove that any circumstances that the ex or CPS was claiming that existed in the home that is causing them to keep your child away are proven to no longer be present before you push for the burdens to be lifted.
Make sure you clearly state what you want the court to do, something like: The Court should restore the final order and dissolve the temporary order that has interfered with my and my child’s rights since the condition the court used to create that temporary order no longer exists. (NOTE: There are some conditions that would not allow you to resolve the conditions and restore your rights to your child, so make yourself aware of which ones these are and compare the state laws with the federal laws. Have an attorney help you with this. Just know that you will have to integrate your rights with the process since most attorneys will refuse to put this work into your case, will claim that they don’t do things this way, and will try and make it impossible for you to use your rights by referring to bad precedent that they have set by the way they have been applying family laws for decades.)
Remember, it is not in an family law attorney’s long term financial interests for constitutional rights to be protected in family law.
You may also want to use the following to address a court stating that it is going to make cautious orders that don’t allow you to see your child or place you under monitored or supervised visitation based on the false allegations that your ex was unable or never required to prove.
According to due process, “emergency circumstances mean circumstances in which the child is immediately threatened with harm. [T]he mere possibility of danger is not enough.” Gates v. Texas Department of Protective and Regulatory Services, 537 F.3d 404 (5th Cir. 2008). And there isn’t even sufficient danger plead or proven in your case!
NOTE: There are cases quoted in this post that are from cases where both parents were intact, they were not divorced parents. So you will want to make sure that you learn other arguments to address this idea. See our book, “NOT in The Child’s Best Interest” for more education and argument about how to protect your fundamental parental rights. Look for argument on deprivations and infringement. The idea is as follows:
The State confuses the term “restrained” with the concept of being permanently barred. The threat from State Judges is real. It impacts “rights more precious than property” and even if Plaintiffs’ eventually were vindicated through appeal, the damage to family relationships would be real, permanent, and irreparable.
Depriving the child of their rights to both fit parents without proper due process is an injury to the child that the court creates when it avoids due process protections in an overabundance of caution. The court cannot act in the best interests of the child by violating the child’s rights.
There are other cases and authorities that you can use if you end up needing to do a mandamus or an interlocutory appeal. This post is certainly not all inclusive. This should help you get started and at the very least help you preserve the record so that the door is open for you to learn more, take control of your life, get your child back, and not be forever subjected to continual allegations interfering and hurting you and your child’s lives. By reducing the time that these allegations can have effect and reducing the harm that the allegations can cause you are discouraging the other side from pursuing them again. (This is not meant to make it fore difficult for people with real allegations to be heard. In fact, it is believed that this makes it easier for people with real allegations to get the correct ruling in a court of law.)
This information is being provided to you because you might not be told this by your attorney. Perhaps your attorney doesn’t know. Most attorneys are very conservative in their practice and only do what some other attorney has done before. Very few attorneys lead, most just follow. Perhaps this information will stir additional conversations and solutions that protect you and your child.
The courts will continue to take advantage of parents and children who do not use and know their rights. Remember that you can continue to go through the family courts the old way and continue to be subject to the court’s whim and their continued imposition of whatever costs and however long they want to deprive you of rights and time with your child and you will have nothing you can do about it.
Use this approach and you have a great chance of walking out of your court with less costly burdens, you have opportunity of overturning your court if they do not respect proper due process. Just recently we sat in a hearing and watched the judge deny ordering child custody evaluations and psychiatric evaluations.
Using proper arguments works. Sometimes they work quickly and have effect on the trial court in positive ways and sometimes it takes longer and a challenge through the appellate court becomes necessary.
The courts are more than happy to take advantage of you and take over your life and make it look like they are protecting a child. We have seen too many lives destroyed and have seen too much collateral damage to find any justification in a court saying that they are going to make orders that are cautious. They are not protecting a child when they ignore proper due process and procedural protections for you and your child. They are not protecting a child when they order an amicus or guardian ad litem, essentially another attorney to dig into your child’s private life for the benefit of the court to make a best interest determination in the face of your fit parenting decisions.
You should object that an overly cautious order that deprives the child of due process or equal protection junures the child. It doesn’t protect the child. The court cannot protect a child by injuring them.
You will want to get our book, “NOT in The Best Interest of The Child“, online courses, and other motions and samples from the store on our website if you need arguments for challenging the judges notion that he gets to determine best interest of your child. And if you want more training on how to present this for you and want us to work with you and your attorney, you can contact us through our contact page at www.fixfamilycourts.com/contact/.
And think about this, if you are a parent using false allegations against the other parent to the court and are reading this, one day the tables could be turned on you. Are you willing to risk that! You will have no protections when that happens to you. It is also illegal to falsely accuse someone. And it is even worse to recruit your child to say false things about the other parent. That is parental alienation.
If you truly do not like the other parent and feel that the other parent is not the best influence for your child but the other parent is not violating any laws, then consider other ways of coping with the fact that you do not like the other parent. The law can always, always protect your child from true danger and immediate danger. If it is anything less than that though keep in mind that the court could just as easily turn on you and you could lose your child for pursuing something that does not rise to the level of a crime. And if you are using the allegations to get custody or to change custody, think about your child and the harm that it does to your child. Think about what you are teaching them. We encourage you to look for other ways to handle differences.
You could even be sued in federal court for violating your ex’s civil rights or even violating your child’s civil rights.
The post is being made for informing the public that there is a very important public problem. Children are being removed from one parent throughout this country for extended periods of time and then being alienated from that parent and that parent’s family and the relatives on that side for gaining favor of judges in child custody proceedings. We believe that the “best interest of the child” policies in the states are contributing to this destructive behavior. Parental alienation is a lifetime damaging condition and the only way to stop this from being empowered in the family courts is to educate parents under attack and attorneys helping those parents, and to require the judges to apply constitutional protections before applying statutes that are not clearly constitutionally sufficient.
CALL TO ACTION FOR FAMILY LAW ATTORNEYS:
Millions of parents and children are suffering every day because of abusive court processes. More education is needed to prevent these abuses. More parents need to be aware that the courts will take advantage of their pains and woes. If you are an attorney working in this field, please join with us to actively protect every parent and child’s rights regardless of what the statutes read, you have a fiduciary duty to protect your client’s rights, not to waive them without their agreement.
Other Sources with Good Information for Managing Your Life During Allegations of Child Abuse:
(note that some of these sources might not know our information so where they advise steps in court processes keep that in mind. You will have to integrate and alter the steps as needed so that you are not consenting in the wrong places.)
- Survive Allegations of Child Abuse – This page has good clear steps for different stages of the process in and out of court.
What is the Text of the Supremacy Clause?
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
*Every state has different statutes so make sure that you know what your statutes say before you apply, and only apply what applies to you and your situation.
DISCLAIMER: There are never any guarantees to results and any reference that we make to legal terms or what to put into court trials or appeals or mandamus are all educational. They are to introduce the reader/student to ideas that they might not be getting from their attorneys, alternatives that might not be available to individuals facing serious court issues, life changing situations, in order to provide solutions and alternatives to them that might save them, their family, or someone’s life.
If you choose to use anything you find in our blog it is at your own risk.This blog and information you find here and on this website is not a substitute for an attorney. Please consult an attorney for information on how to present your case. We do not know the nuances of your case and even if we did we are not attorneys and do not practice law. You are responsible for your own results and consequences.