IT SEEMS TO BE INCREASINGLY COMMON for spouses (particularly the wife) to charge the husband with physical, sexual and/or emotional abuse of the children of the marriage once the “fur starts flying” (see previous post—Part 4).
Of course, this could be true. Then, again it may not be and it is just a tactic to intimidate the husband into conceding everything the wife wants and getting the divorce over with as quickly as possible.
Defending the husband in the face of charges by the wife of abuse of their children is particularly difficult for the husband’s attorney. Sexual abuse is one thing, but there are varying degrees of physical or emotional abuse.
Some say a slap on the fanny to a misbehaving child is within the prerogative of a parent as a manner of discipline. I know I got a few. Others would say that such physical punishment should never occur.
Emotional abuse also takes many forms: from ignoring the child to constantly berating the child verbally for whatever behavior the parent finds objectionable. Every case is different.
I’ll try to make it simple for myself, in this post, as the attorney for a husband who has been charged by his wife in a divorce with physical or sexual abuse of the child or children. The husband denies it completely.
I have thoroughly questioned the husband to see if there is any basis for the charge and find none. I can only conclude that the wife is using the charge as a form of tactical intimidation to force the husband into what she wants.
But when that charge is made, the Judge (a Chancellor) MUST appoint a guardian ad litem (translate: a guardian during the litigation) for the children.
He becomes the child or children’s lawyer. And someone will have to pay him, depending on how his investigation of the situation turns out.
But first things first. The charge is made. The guardian ad litem is appointed. The investigation begins. The first thing the attorney for the husband will be confronted with is a request by the guardian that both parents take a polygraph examination.
Ordinarily, polygraph examinations are not admissible as evidence in court. This is because of the inherent subjectivity and unreliability of polygraph examinations. For example, a person charged with a crime cannot be compelled to take a polygraph examination.
But in a divorce, a quandary arises:
If the husband refuses to take the polygraph examination and the wife agrees, well, what do you think?
I would think the wife was right, telling the truth and that the husband has much to hide. But that might not necessarily be so. The husband could be perfectly truthful in his denial, yet still fail the polygraph for a number of reasons.
And if he fails, watch out brother! He will be immediately reported to the District Attorney’s office and will likely be prosecuted, not just on the basis of the polygraph, but on the testimony of the wife and possibly the children (whose vague statements can be surely manipulated to cast the worst light on the husband) and the Department of Human Services personnel who interview the children.
A terrible fix to be in, to be sure.
So, what is one to do? It’s a judgment call. And your attorney better be right.
In a recent case, I had no question, after getting to know the client, that the charges of child abuse by the wife were totally baseless. Did I know this for a fact? No. But my judgment, my “gut instinct” told me these charges were totally false.
Once I made that judgment there was no question that my husband client would take the polygraph. And he passed. Was there a problem? You bet. The wife passed, too.
So we have the polygraph examiner saying the wife was telling the truth about what the children told her about the alleged abuse and also telling us that the husband was truthful about no such thing happening.
Interesting, no? The polygraphs were totally worthless. But my judgment was that the wife’s accusation could not go unchallenged. Luckily, the forensic examination of the children (that is, interviews by the DHS personnel) did not show any signs of abuse.
And, finally, the guardian ad litem had to conclude that there was no validity to the charges. I think there is something to say about the comment by some that some people are so cold and calculating that they can beat a polygraph.
Even with a tie on the polygraph, exploration of the wife’s other activities led the Judge to conclude that the charges were false. And that they were made to bolster the wife’s case. A tactic that worked against her, by depriving the husband of visitation for months while the investigation was going on, and, ultimately, one of the factors that resulted in her losing custody of small children, which is not usually the case.
In these situations, the experience of your attorney and a considered judgment based on those years of experience can make the difference between success and awful failure. Choose your attorney wisely.