The Kavanaugh allegations have put the seriousness and devastation of sexual misconduct and assault, and the importance of justice in those situations to the forefront of America and I’m glad about that. No one who has been a victim of sexual misconduct or assault should go unheard, and no one who is a perpetrator should go unpunished. All that said, the Kavanaugh situation has also put something else into the spotlight that I think is extremely meaningful and important: the potential for false allegations. I have been wanting to write a piece on false allegations in divorce for a long time—even before all of this.
Before I get into anything, I want to make it clear that the intent of this article is not to give my opinion on whether or not I think Brett Kavanaugh is guilty or innocent, or whether or not I think the women’s allegations against him are true or false. That is irrelevant for the purposes of this article. Still, I am sure I will receive a backlash of hate mail and comments because I didn’t come out and declare him guilty. But that’s OK.
What I want to address is the numerous cases of false allegations in divorce, which sadly happen so much more often than one might think.
I have gotten many emails from readers who have a soon-to-be spouse who falsely accused them of domestic abuse, physical abuse or sexual abuse either for themselves or the couple’s children. The intent of the spouse can include: to hurt the person, take the kids away, get revenge, get them to have to move out of the house, or get the upper hand in the divorce case for financial and other divorce decisions.
False accusations are very often anger-driven and done out of spite or some kind of hidden, vindictive agenda. In some cases, they stem from mental health issues, including paranoia.
To learn more about false allegations in divorce cases, I reached out to Lisa Giese, a family law attorney and Guardian ad Litem (GAL). For those of you who might not be familiar, a GAL is an attorney appointed by the court to represents the best interests of the children in contested cases. They ultimately make recommendations to the court regarding parenting time, (better known as custody) and allocation of parenting responsibilities, including medical, religion, education and extracurricular activity decisions.
Giese said in her 9 years of being a GAL, she has experienced dozens of cases that involved some component of abuse, and that in most of her cases, criminal charges were not filed, usually because DCFS (Department of Children and Family Services) concluded that the allegations were unfounded because of insufficient evidence.
I asked Giese if she believes that some divorcing parents maliciously make false allegations against a soon-to-be ex. She said yes, in her experience, they absolutely do.
“I cannot tell you how many times I’ve heard of cases where people call the police in an effort to having the other party removed from the house to gain an advantage in an ongoing or new divorce,” Giese said. “They’re thinking: ‘Now I can get an order of protection, the other parent isn’t seeing the children, the children are only hearing my version of the events, and now I have a huge advantage because for all intents and purposes they are living with me, and I’ll be able to show that they are doing great and I’m establishing this as the status quo. So I now have a better chance of getting custody.’ They’re essentially establishing themselves as the primary parent.”
What happens when allegations are filed against a person?
According to Giese, in cases of physical or sexual abuse, someone can file a restraining order against someone (including their spouse or ex-spouse) without giving any notice to the person. Meaning the person gets blindsided with the order. Then, the order can be good for up to 21 days. What does that mean?
That means, that the accused may not be allowed to see his or her children for 21 days, or until they exercise their right to come to court and respond.
So, during that time, the person must:
1. Obtain an attorney (or call their divorce attorney) and yes, let the billing begin.
2. They can’t see or talk to their children.
If they argue their case and the judge finds sufficient evidence of abuse, the accused then likely gets either no contact with his or her kids, or they get supervised visitation. The accused might then have to undergo psychiatric testing (which can be humiliating), possibly a lie detector test, and spend tens of thousands of dollars for a lawyer to defend them and prove innocence, all during which time they can’t see their kids (or they can only see the kids supervised.)
I think that protocol is the only logical way to do things. I mean, how can the courts take a risk? What if the person IS guilty? So, DCFS is just doing their job to best protect the spouse and/or the children, which makes sense.
“Most likely, from the court’s perspective: The risk of harm to a child in an actual instance of abuse far outweighs the harm to a parent in having limited contact with their children for a period of time and a potential disadvantage in litigation proceedings,” Giese said.
Now, if the investigation proves that the person was guilty, then the court did its job to protect the children and the protocol was appropriate. My problem is, and where I see injustice that is so unbelievable starts at the point when the courts determine that the allegations were false, and that the accused is innocent.
“We don’t have punitive damages in family court,” said Giese. “There are a couple ways you can be sanctioned. The most common is paying the other person’s attorney’s fees and the GAL fees. The second severe remedy could give custody to the person who was accused, but it is very rare.”
That’s it? That’s all that happens to a person who possibly committed perjury and tried to get his or her ex out of the picture? They have to pay their attorney’s fees? And in rare cases they get custody of the children?? That to me doesn’t sound like justice.
I truly believe that if false allegations turn out to be unwarranted, that the accuser should face serious fines and possibly jail time. Otherwise, what’s to prevent other people from engaging in this kind of vindictive behavior?
I cannot even imagine being a person who is accused of terrible acts of abuse. Not only is your character attacked, but you have a restraining order that prohibits you from seeing your children unless possibly supervised, and you have to spend tens of thousands of dollars defending your innocence for something you didn’t do.
But that’s not even the worst part. The very, very worst part is that the kids will most likely always be affected, and might still have doubt (even though it didn’t happen) because they’ve been coached by the accuser for so long. The relationship is damaged and may never be the same.
It’s baffling to me that judges don’t inflict HARSH penalties to accusers whose false allegations turn out to be false. Judges owe these harsh penalties (which should include jail time) to our society, so that people think twice before anger drives them to pick up the phone and make a call that can potentially destroy their spouse’s and their children’s lives.
I did learn from Giese that there’s a difference between perjury (willfully lying), and testifying about something YOU thought was actually true. In other words, our court system doesn’t find someone guilty of perjury if the person testifying really thought the allegations were true. So, that makes sense.
I wrote this article for a few reasons. I want people who are falsely accused to find validation and comfort that they are by no means alone. I also hope to bring awareness out there to people that you should not assume guilt until someone is proven guilty.
“How do you prove you didn’t do something?” said Giese. “You can’t.”
And lastly, I hope lawmakers will take action to deter people from acting out in the vindictive and disgusting manner of falsely accusing someone for their own ulterior motives during or after a divorce.
I do want to add one more thing. I am by no means minimizing the importance of justice in a case where the accused is guilty. The guilty deserve to be severely punished, victims deserve to be protected and have justice, and spousal or child abuse is unacceptable and absolutely disgusting. And, many more cases in court turn out to be warranted than false. Still, the victims of false allegations need to be protected.
Divorce is never easy, and there is usually an immense amount of anger and injustice that one or both people feel when they decide to end a marriage. While those are very understandable feelings, no matter what the person did, no matter how awful you think he or she is, NOTHING warrants making false allegations. NOTHING.
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