www.loubar.org 6 Louisville Bar Briefs PROFESSIONAL EXCELLENCE (Continued on next page) “Concerns” of a Co-Parent Litigation Strategies to Handle Allegations of Child Abuse or Harm Melina Hettiaratchi Introduction Family lawyers are well aware of the gravity and potential risks involved in raising “con- cerns” about a child’s well-being during an ongoing custody case. Each of us recognizes a single “concern” has a destabilizing effect on a family, whether expressed through hearsay at a motion hour or an expert opinion based on a brief evaluation. In recognition of Child Abuse Prevention Month in April, the LBA Family Law Section presents this article to emphasize practice pointers for handling al- legations of abuse or neglect in custody cases. “Concern” is often used as a euphemism for abuse, allowing a nuanced approach but po- tentially lacking clarity. In some cases, using the term is a handy way of saying that there may be ongoing issues of a serious nature; however, claiming “concerns” can also serve as a warning that there is little to no actual proof of abuse or harm. In any instance, practitioners and judges should be aware that allegations of some harm might result in the restriction of a parent’s time or custody rights or both. Child abuse allegations in family court proceedings are among the most challenging and emotionally charged cases that family law attorneys handle. Whether representing a client seeking to protect a child or defending against wrongful claims, attorneys must carefully manage evidence, navigate expert testimony and address biases in forensic reports and custody evaluations. This is perhaps even more important in high- conflict custody cases. In Jefferson County Family Court, family law practitioners must balance the client’s interests against the expectations of a judge who may hear identical allegations on two different docket days. This necessitates dif- ferent evidentiary and statutory standards. This article will provide a brief refresher on those standards, followed by best practices for working with experts, overcoming bias in evaluations and protecting or obtaining evidence in high-conflict custody disputes. *** Standards in Family Court Remember that different evidentiary stan- dards and legal tests apply to decisions made under different statutes in Kentucky family law cases involving child custody and parenting time. • Dependency, Neglect or Abuse (DNA) Cases – Preponderance of the evidence (more likely than not) that a child has been abused or neglected. “Abused or neglected” means a parent or caregiver has harmed or threatened a child’s health or welfare. KRS 600.020. • Termination of Parental Rights (TPR) – Clear and convincing evidence (substan- tially more likely than not) that (1) a child has been abused or neglected by this par- ent, (2) termination of this parent’s rights is in the best interests of the child and (3) one or more of the enumerated grounds for termination exists. KRS 625.090. The court must find clear and convincing evidence, not a preponderance, that the child is abused or neglected. • Domestic Violence and Abuse (DV) – Preponderance of the evidence that domestic violence or abuse has occurred and may again occur. KRS 403.740. In this context, domestic violence means physical injury, serious physical injury, stalking, sexual assault, strangulation, assault or the threat of those things between family members, including a child. KRS 403.720. Any adult can file for an emergency pro- tective order and temporary custody of a child alleged to be a victim. Through the DV process, an ex parte temporary custody order can be entered simply because a box was checked on the petition. The Court, however, may only award temporary custody using the criteria in KRS 403.270, 403.320, and 403.822 following an evidentiary hearing, after which it finds by a pre- ponderance of the evidence that DV has occurred and may occur again. KRS 403.740. Ostensibly, this can be ordered even if the Petitioner does not file on behalf of the child but pursuant to their own petition for a DVO. • Circuit Court Custody (CI) – Prepon- derance of the evidence that joint custody and equally shared parenting time is in the child’s best interests. KRS 403.270(2) If the court deviates from equal parent- ing time, it must create a schedule that maximizes time with each parent and is in the child’s best interest, consider- ing evidence and the factors listed in KRS 403.270(2) as well as the “safety and well-being of the parties and of the children” in KRS 403.315. Even if a parent or de facto custodian is not awarded custody and parenting time, they are still entitled to reasonable visitation rights unless the court finds that visitation would seriously endan- ger the child. KRS 403.320. The Court can only modify visitation rights if it’s in the child’s best interests and the current visitation seriously endangers the child’s well-being. Family lawyers or their clients some- times misuse the DV process for protec- tive orders or temporary sole custody. Similarly, CPS prevention plans can in- fringe on parental rights before a DNA petition. Jefferson Family Court judges are often reluctant to enter temporary orders with quick trial dates, leaving no protection for urgent CI cases that may not reach the level of harm in DNA or DV cases. In child custody cases, especially those in- volving potential harm, lawyers must ensure judges apply correct legal standards and document their reasoning. Expert testimony and evidence are crucial in child abuse cases, and attorneys must be prepared to challenge or validate expert conclusions, particularly in high-conflict cases where manipulation may occur. *** Best Practices for Introducing Expert Testimony and Reports Expert Qualifications and Methodology Before agreeing to or allowing the court to appoint an expert, verify their credentials and family court experience, especially their understanding of relevant legal standards. Address any discrepancies between their definition of “harm” and legal standards with the court before their testimony or reports. To identify inconsistencies and bias, subpoena redacted reports of similar cases, scrutinize the expert’s methodology and confirm whether the findings have been peer-reviewed. Additionally, request demographic data of the expert’s cases and schedule depositions early to obtain these documents. The American Bar Association has an informative article with best practice reminders for discovery and cross-examina- tion when a child-abuse physician is involved (https://www.americanbar.org/groups/litiga- tion/resources/newsletters/childrens-rights/ questions-lawyers-should-ask-child-abuse- pediatricians/). These tips can be used to chal- lenge an expert who is determining if a parent should have restricted custody or parenting time due to harming a child. Complete this before the expert evaluates your client. Frequent appearances in family court do not exempt anyone from a thorough review by effective counsel. Interviews of Children Whether children in your cases are being interviewed as part of a forensic investiga- tion or in regular therapeutic settings, these conversations are crucial pieces of evidence in abuse allegations. In DNA cases, there are strict protocols for such forensic interviews to be conducted. When there are simply “concerns,” those protocols for the parents, children and interviewer disappear. Regard- less of the reason for the interview, practi- tioners should challenge whether it has been conducted using best practices like: • The National Institute of Child Health and Human Development (NICHD) interview protocol. • Avoid leading questions that could influence a child’s responses. • Video recording of interviews to ensure transparency and prevent misinterpre- tation. Attorneys should request a transcript and recording of any forensic interview and be prepared to challenge improper techniques. If an interview was suggestive, attorneys should seek the exclusion of unreliable statements. If a child did not immediately disclose abuse, an attorney proving the allegations should bring in trauma experts to explain the psycho- logical reasons behind delayed reporting. At- torneys defending are in the unattractive, but necessary, role of impeaching the child wit- ness. Provide school records, video clips and text messages showing a loving parent-child relationship. Attorneys should investigate whether the accuser has a history of making unfounded claims, regardless of whether it is the child or another parent. Medical Evaluations The article shared by the American Bar As- sociation handles this topic more thoroughly.
