Category: Custody Cases

Child Abuse by the “Good” Parent

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But I Didn’t Do Anything!

There is a common but sometimes overlooked problem when children are abused.  Adults who are not directly responsible for injuries to their baby or child, but allow someone else to injure them, are permitting the abuse which has the same effect on the child. The law demands someone protect the child if the other parent won’t.  But if no one notifies Child Protective Services, the child might not get the protection he or she deserves. A scenario I’ve seen more than a few times in my practice is the parent who is faced with an abusive co-parent who suffers from substance abuse. The sober parent sees himself or herself as the “good parent” who guards or protects the child from the “bad” parent.  Sadly, that is not the case at all.   

But I’m the Good Parent Who is Always There

First, you cannot always be there to “supervise” the other parent or adult.  There are inevitably times you must leave the home or leave the other adult with your child.  Constant protection and surveillance is unrealistic, especially when there is turbulence between the co-parents or other adults who are in the home or spend time around your child. In fact, when a romantic relationship between parents ends and they separate, the other parent might threaten to take the child as a way to get back at you, even when the child does not have a close relationship with him or her.  The other parent might do so while driving drunk or under the influence of controlled substances.  What if he or she is angry and starts throwing things at your child or at you while the child is watching?  Or passed out and doesn’t hear the baby crying or the fire alarm?  Or crying while waiving a weapon and making threats to hurt you and/or commit suicide?

Second, a parent who is intoxicated or impaired can be moody and easily agitated, which can lead to physical assaults.  Time after time I see domestic violence cases filed after a baby is violently snatched from the arms of the “good” parent and used as a pawn to control her or him or to prevent the other parent from fleeing the home. As the child hears all sorts of chaos, screaming and cursing, the parent (and child) may be shoved, pushed, kicked or held against his or her will.  Think about it: to your baby or child, it is meaningless whether or not you were the “good” parent or the bad parent that day.

Stop the Cycle

Parents forget the child sees the behavior modeled by both of them. Aside from teaching children to either become abusive, or tolerate an abusive partner when they grow up, allowing this type of environment is dangerous.  It is not uncommon for children and teens to jump into the line of fire when they try to help the parent or sibling who is being abused in front of them.  Children and teens are not equipped to handle this sort of trauma. Although there are some technical legal distinctions, child abuse is a form of domestic violence. Your kids are dependent on you for protection. It can be hard to break up with the other parent because you feel you are giving up security or the marriage but it is not a secure situation if you do nothing. In fact, the longer a victim stays with the abuser, the more chance the danger will grow. Victims of violence think they will miss the marriage or relationship with the other parent.  However, it is sometimes the case that they miss the relationship they wish they had, not the relationship they are somehow managing to endure every day.

The Bottom Line

Parents are sometimes reluctant to call 911 when there is violence in the home.  They should always call 911 when any violence occurs. Allowing the other parent or another adult to abuse or neglect your child just because they live with you is not okay. Additionally, it creates potential legal liability to you. Failing to remove your child from an abusive environment means Child Protective Services might do it for you because you knew about it and allowed it to happen.  Or, it might mean you try to help your child after it is too late and the damage cannot be undone. There are many complex issues surrounding violent family relationships. If you are facing family violence, consult with a family law attorney immediately about how to safely remove yourself and your child from an abusive environment.

 

Resources in North Carolina (Victim Information Sheet) Or search online for form AOC-CV-323

Personalized Domestic Violence Safety Plan (checklist of things to do when facing violence in a relationship) from NC Dept. of Social Services. Or search online for form DSS-5233

Real Crisis Intervention in Greenville offers counseling, advocacy, information and referrals.

Center for Family Violence Prevention in Pitt County

Laws change. This article is current as of 2023.

Child Abuse and Neglect in North Carolina

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By North Carolina statute, anyone who has reason to believe a child is being abused must make a report to CPS (Child Protective Services).  This also applies to suspected neglect or dependency upon the state when a child is abandoned.  The identity of a person who reports suspected child abuse is sealed by the State so that the parent or caretaker of the child will not know who made the report to CPS.  As long as you have a good faith basis to report child abuse, you do not have any legal liability if CPS decides no abuse has occurred. The name of the person reporting is strictly confidential.

The policy of the law is to trigger an investigation into a child’s circumstances so CPS can prevent potential harm to the child, or remove the child from an abusive environment. People sometimes hesitate to report suspected abuse because they feel the parent will be punished.  Reporting doesn’t always result in a finding that abuse or neglect has occurred.  Upon receiving a report of suspected abuse, there is an investigation by social workers and/or other trained and licensed professionals. If the CPS investigation finds evidence there is abuse or neglect, a lawsuit may be filed and the parent will usually be entitled to an appointed attorney to represent him or her in the case. Parents are then given access to resources that give them tools for dealing with their inclination to abuse their child. Punishment is not the goal in these civil (non-criminal) courts. The constitutional rights of parents must be respected, just as they are in criminal cases.

What Counts as Child Abuse?

In a perfect world, there would be a simple definition for child abuse.  But we live in an imperfect world where it is necessary to include lots of examples of abuse as we try to define it. Taken together, this patchwork of situations creates the legal definition of child abuse in our state.  It gives you a flavor of the sort of thing you must report. Fortunately, you don’t have to figure all of that out because it is the task of the NC Department of Social Services through CPS to decide exactly what fits into the definition of child abuse or neglect. All you have to do is err on the side of caution and call CPS when you see abusive behavior or evidence that indicates a child is in danger. An abused child is one whose parent, guardian, custodian, or caretaker:

  • Inflicts serious physical injury by other than accidental means.  This includes an adult allowing someone else to inflict injury on the child;
  • Creates a substantial risk of serious physical injury to the child by other than accidental means (or allows someone else to create that risk);
  • Uses or allows . . .  cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
  • Commits, permits, or encourages the commission of various sexual and obscenity offenses;
  • Creates (or allows to be created) serious emotional damage to the juvenile shown by the child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others; or
  • Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the child.

What are the Signs of Child Abuse?

For the signs of suspected abuse, see the list on the NC Department of Social Services web site. If you suspect a child is being abused in Pitt County, call 252-902-1110 during the day, and 252-830-4141 after hours. There is also information about the basics of reporting suspected abuse in NC, offered by the TEDI Bear Children’s Advocacy Center.

Your Case & the Cutting Room Floor: Too Much of a Good Thing?

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There are all kinds of family law cases, and each one is unique. Some are straightforward and others are complex. Attorneys highlight the favorable aspects of their clients, and de-emphasize the unfavorable. Trials take on lives of their own regardless of what clients, attorneys or even judges expect. There are a lot of moving parts, especially when cases are lengthy and complex. Especially with the best cases, editing is the hardest part. Too much of a good thing can backfire when the judge is knee-deep in “good” information. Clients and attorneys don’t always agree on where to draw the line.

In the Court Room

In Pitt County family court, each side has a specific number of hours assigned to try their case. A two day trial might be distilled to 5 or 6 hours for each side, after taking into account lunch breaks and short breaks throughout the day. That might sound like a lot but it really isn’t because that includes any opening remarks, questions to witnesses, cross examination and closing argument. The court has to keep cases moving through the system, which is already tremendously over-burdened. Time is of the essence.

Trial Exhibits

Exhibits are usually documents each side admits as evidence for the judge review before deciding the outcome of the case. Depending on the type of dispute there is, exhibits might include photos of the children, copies of grade reports and medical records, text messages and e-mails between the parties, records of each party’s wages and insurance, bank and credit card statements, or tax returns. A complex case might have 30 or 40 exhibits, each being multiple pages. The judge has to review two stacks of “basic” exhibits, one for each party. Frankly, they can be rather dry and boring.

Less is More?

Like anyone else, some judges have longer attention spans than others. If it is a custody case, they don’t mind five or ten photos of the child at issue. They do mind thirty photos unless there is some specific reason. For a trial, a good attorney creates a cake, so to speak. The cake itself forms the foundation, the basics. The “goodies” are the decorations or icing on the cake. One example of goodies might be love letters written to a third party by a cheating spouse. It is usually more powerful to select four or five of the best “goodies” instead of diluting the value by heaping them on indiscriminately. These exhibits must be distinct to stand out from the rest. You might have fifty or sixty pages of e-mails where you should have ten. Your attorney has been in trials with a certain judge and knows his or her preferences. Take your attorney’s advice and get the best bang for your buck, and keep the judge focused on the priorities that matter to you.

Child Custody Evaluations in North Carolina: A Double-Edged Sword

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The vast majority of child custody cases are settled out of court.  Parents or custodians sometimes negotiate on their own with attorneys to reach an agreement. Another way an agreement in custody case can be resolved is by mandatory custody mediation where a neutral mediator and both parents meet in an effort to create an agreed-upon custody order.  The cases that fall outside of the vast majority and are litigated in court are the ones that are most complex. For example, it is difficult to “split the baby” when parents live in different parts of the country and both want to have primary custody.  That usually means that one parent will have most of the school year with the child or children, and the other will have most of the summer vacation. These are the types of cases in which parents often consider having a child custody evaluation performed.

What is a Child Custody Evaluation?

Performed by a psychologist, a CCE results in a written report that is provided to the court. The psychologist evaluator will then testify as an expert witness at the child custody trial. The exact details vary depending on what the expert is appointed by the court to do.  But the evaluator usually administers psychological testing, such a personality test called the MMPI-2, for each parent or guardian. The test results identify the strengths and weaknesses of each parent.  The evaluator typically reviews the medical and mental health records of the family members, meets with the family members separately and together to interview and observe them, and contacts third parties such as teachers or third parties who reside in the home. The evaluator might even do a home visit to each parent’s residence. Based on all of this, the CCE report will make recommendations about what is in the best interest of the child or children.

What Does the CCE include?

The CCE report will usually give the judge insight on what the child actually needs, as well as explain each parent’s parenting styles.  To over-simplify it in an example, if a child suffers from anxiety, he or she might need a very structured routine and one parent might be more decisive than the other.  There is usually a list of these sorts of conclusions, followed by recommendations, which almost always include a course of mental health treatment. That treatment must be referred to a third party professional because the evaluator psychologist is used only for court and is prohibited from treating any of the family members. Another recommendation might be for the court to assign a parenting coordinator, who is authorized to make minor decisions when the parents dispute what the custody order requires them to do. Recommendations are otherwise based on each family’s disputes and needs. These might include the frequency of phone calls with each parent, or who is better suited to make medical decisions if the child has serious medical problems.

What are the Advantages and Disadvantages?

If the report recommends a schedule or a parenting plan that benefits you, congratulations.  You now have a built-in expert witness testifying on your behalf. However, if the report favors the other parent, you are at a definite disadvantage. Overall, judges are inclined to accept the recommendations.  This is less about rubber stamping the report than it is about having an expert with a string of letters behind his or her name tell the judge why he or she should do what is in the report. Unlike a psychologist evaluator, the judge isn’t going to go to your house, give you a personality test, talk to your child (most likely) or observe each of you with your child. Instead, the judge is usually only getting to see you and the other parent for a few hours while you testify in your dress clothes. CCEs can be extremely expensive, and insurance usually does not cover them. One or both parties might choose to have an attorney depose the expert in a deposition, which adds significantly to the cost.  Judges often expect the parties to share the cost when they appoint the expert to perform the CCE.  After the trial, the judge has the authority to assign the costs for CCE, including reimbursement of one party by the other for the full cost, including the deposition and the expert testimony.

Are Bad Parents Rewarded in Custody Cases?

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In the real world, people’s morals form the foundation of their beliefs, of right and wrong. If someone does something wrong, there is an expectation of consequence or penalty. A parent punishes a child for bad behavior. Or, relatives might disown each other and spend decades estranged from one another because one of them wronged the other. Paying someone back, or washing your hands of him or her for “bad” behavior may be totally justified in the real world. In fact, that is usually the reason a couple separates.

Judges in custody cases look at things differently. It helps to think of court as its own little eco-system. Courts are based on the law, plodding through a checklist of legal considerations that must be made. These considerations are not necessarily based on right and wrong. Judges start from the premise of no-fault, similar to no-fault divorces. Why you separated is irrelevant to the judge if you obtain a divorce in North Carolina. Bad behavior of one parent matters little unless it relates to the safety and well-being of the child.

How Bad is Bad?

As with most of the matters in family cases, it is a matter of degree. Clients sometimes ask if the court will deny visitation or terminate the other parent’s rights. The answer is no, in the vast majority of cases. The degree of bad behavior that is required to do so is extreme. The courts will not deny visitation because the parent is mediocre, or because he or she is a poor parent. It is likely he or she will have visitation and the question becomes a matter of how frequently and for how long. If the other parent behaves poorly, the judge may try to fix it. For example, a judge can order a parent not to smoke in the home or car when the child is there. A judge might also require the parent to have no alcohol in the home, or go to counseling to address anger issues, depression, or other mental health concerns. A judge can require supervised visitation, depending on the family circumstances.

Do Judges Reward “Bad” Parents?

Bad behavior will not help the other parent’s case, but don’t expect the judge to say he or she blew it, and therefore, visitation is denied. Judges want children to have both parents if at all possible. For example, a parent who has not played an active role in a child’s life may return a few years later and persuade a judge to give him or her a second chance to gradually create some sort of relationship. This doesn’t mean a judge will give that parent custody, just the opportunity to see if a bond can be created or renewed. To the judge, the estranged parent isn’t being rewarded even though it feels like it. You will always be a parent and you will also be loved. But the judge’s goal is to see if the other parent can successfully play some role and give the child two parents.