What to do about lies and false accusations in a custody case.

There seems to be a lot of buzz nowadays about allegations made in court documents and police reports etc.  We live in a time where everyone wants to know about everyone else’s business…and everybody seems to have the means to find out about everyone else’s business.  Most documents filed in a lawsuit are available to virtually anyone online.  Think about all the buzz in the media about harassment and abuse allegations made against celebrities.  Some of these allegations are just now surfacing even though they stem from events many years ago.  Does the fact that that an allegation is made in a legal document automatically give credence to that allegation?  Of course not.

The fact that an allegation is made just means that someone once said it.  It does not mean that there is evidence to support that allegation let alone an official adjudication substantiating the allegation.  For example, it is not uncommon for people going through tumultuous custody cases to seek restraining orders against each other. In my experience, the factual bases for these requests often fall far short of the applicable standard. Notwithstanding, I find that people frequently are misled into believing that because a VPO (victims’ protective order) was once sought against someone, that fact, in and of itself, is good evidence against that person.  This sort of thinking involves gross oversimplification.

The important consideration is whether the allegation resulted in a judgment.  I have had cases where clients were accused of child abuse by the other party as a way to gain advantage in the case.  Ultimately the allegations were proven to be outright false, or at least lacking in evidentiary support.  While simple-minded people may forever focus on the fact that the abuse allegations were once made, the important take-away is that these allegations were not substantiated.

Some people may say “why would someone make such a serious accusation if it were not true?”  Think about this question. Have you ever encountered someone who told a lie, knowing it was untrue, to gain an advantage of some sort?  I have seen this many many times, even outside my law practice.  I don’t think my experience is unique.  I’m probably not qualified to render an opinion from a psychological standpoint as to why people lie so often and so destructively.  I just know that they do.

So what can be done when someone makes unfounded lies in a custody case?  I think the first thing to do is take a deep breath…and wait.  Oftentimes I find that the response to accusations is worse than the accusations themselves. Suppose you are accused by your spouse of hitting your children.  You respond by a litany of text messages, laden with expletives, threatening all sorts of reprisal against your spouse.  What would the results of this response be?  First of all, your spouse will probably treat your reaction as giving validity to the accusations.  “Why would someone be so worried if the accusations are not true?” Additionally, the fact that you responded so aggressively could be used as evidence that you are an impulsive, and potentially violent person.  You do not want either of these scenarios in your case.

Once you have had an opportunity to compose yourself, you can think of a constructive email/text message to send. A response something along the lines of “I don’t understand why you would say that I hit our children. Not only is that accusation hurtful to to me personally, but it is patently false. Can you help me understand why you are saying those things?”  I think something like this will be less antagonizing and therefore more understandable to the judge.  It is entirely normal for someone to question false allegations.  People get in trouble when they overreact by expletive-laden threats as a response to accusations.  Of course, both responses are understandable under the circumstances. However, the levelheaded response is typically, if not always, the better option.

Suppose you cannot even bring yourself to make a response without blowing up. If that is the case, and it is not hard to see why it would be, then the best thing to do is nothing at all.  The fact that you do not confront your spouse about the accusations is not evidence that the accusations are true.  I have seen people try and make that argument, but I have never seen it done successfully.  Imagine what the response would be if someone asked you why you did not confront your spouse about the accusations. You could respond “I was shocked and afraid that somebody might believe those baseless allegations.  Given the seriousness of the allegations, I chose to let that the evidence produced in court show that the allegations are false rather than give more room to mischaracterize what I say.”  Does that sound reasonable to you?  It does to me.

Sometimes the lies in court documents are so thorough and pervasive that addressing each and every lie is impossible given time constraints at a trial.  Clients occasionally find this difficult, because any lie unaddressed seems intolerable.  In these situations it is best to prioritize.  You wouldn’t want to risk not being able to rebut abuse allegations just so you can prove that you never called your spouse fat.  Obviously, the abuse allegations are far more important in the case.  You can take comfort in knowing that even though unrebutted lies were made, you took care of your most important interest: maximizing your time and influence with the kids.

The rule of thumb, if you haven’t already caught on, is to let the evidence do the talking.  In a lawsuit, the evidence is all that matters.  There is an illusion in the mainstream media that any accusation has an implied truth component.  Such is not the case with a lawsuit.  Do not take the bait provoking an overreaction.  As Theodore Roosevelt once said, “speak softly and carry a big stick.”