Child custody is most often associated with divorce, but divorce is not the only circumstance that brings up the need for custody investigations. Today, for many reasons, grandparents and other family members regularly petition the courts for custody of minor children. Even friends of the family have been known to get involved and go to an investigator. As with divorce, these cases can be messy. Motives are not always pure, and emotions can be volatile on all sides.
Setting Up the Investigation
Because motives can be murky in child custody cases, until you get into the investigation, you can't be sure whether your client is actually the better parent. It's not your job to decide who should have custody. Just as with attorneys, if you take money for services, you must deliver those services whether you believe your client to be in the right or not. However, you are at liberty to return that money and bow out of a situation where you believe your client has done wrong or is capable of doing wrong to the child in question — unless your state has a specific law against it. Most do not. Your state may also have a law requiring you to report your suspicions, especially if you've uncovered any real evidence.
Interview neighbors, teachers, friends, grandparents, and anyone with information about the treatment of the child. If the parents still live in the same house, hidden cameras can be installed to view the parent when he is alone with the child. Many times, this more than reveals the nature of treatment that the child receives at the hand of this parent. Put all these observations together into your report and let the evidence tell the story. Surveillance and videotaping will show the manner in which the child is being cared for.
If you are conducting an investigation after a child has been taken by a parent who does not have sole custody, treat the case much as you would a missing parent case. Begin with those who last had contact with the parent who took this child.
Clients want different things from these investigations. Some are looking for documentation of the target behaving in an unsafe manner with or around their children. Some behaviors normally documented in these cases are:
Failure to safely strap a child into a car seat or seatbelt
Taking child somewhere — a park or zoo — then paying little or no attention to their safety
Using alcohol or doing drugs in the child's presence
Driving erratically with child in a car or behaving erratically around child
Throwing raucous parties with child in the home
Leaving child alone in a home, apartment, or car while they run out for something
Leaving child in an obviously unwashed, undiapered, or unattended condition for long periods
Allowing child to play with toys inappropriate for his age, toys with small pieces that can cause choking, toys with sharp, dangerous parts, or objects such as knives and scissors
Be prepared for the disturbing fact that your client may not be in the right. Your client may have motives for hurting the target, getting revenge, or soliciting money, and there may be no evidence of unfit behavior for you to document. Never stretch or manufacture evidence in any case, but be particularly careful here.
If a child returns with stories that seem made up or imaginary, be open to the fact that they may be true. This is especially hard for the child's parent or caretaker. No spouse wants to think that they've married someone who could abuse or allow someone else to abuse a child. Some people are so pained by the thought of their child being hurt they can't bear to believe it happened. Some want to believe that the child misinterpreted an innocent action. Others are reminded of their own abuse, something they've tried to forget, so they dismiss what's right in front of them. Still others believe that children are fanciful and imaginative, and that their testimony is not as trustworthy as that of adults. The little-known truth is that children's testimony, if not contaminated or tampered with, is quite reliable. Some experts believe it's more reliable than any adult testimony. Children stay in the moment more than adults. They're not thinking about what to fix for supper or how to pay the phone bill. They're present and aware most of the time. See Chapter 19 for more information on interviewing witnesses, including child witnesses.
Clients often place hidden cameras or voice recorders in the lining of their child's bag or in a favorite doll or stuffed animal in order to discover what happens on visiting day with a parent or grandparent. This can backfire: If the materials are discovered, your case may be over. The target will always be suspicious that she's being watched and alter her behavior accordingly — at least until the settlement is over.
Investigators should survey the target and record anything questionable about his treatment of the child. In some cases, the client should also buy or rent a camera. If the child persists in her stories, the client may need to record her spontaneous remarks, but they must be unsolicited and made with the child unaware of the recording. Have the client set up a camera and discreetly turn it on when the child begins to speak of suspicious incidents. The child can be asked to repeat what's been said but cannot be prompted or asked leading questions.
Leading questions are those that direct someone to answer in a predetermined manner. For example, “You don't like going to Daddy's house, do you, sweetheart?” is a leading question. Most children will know exactly how you mean for them to answer. Better: “Do you like visiting your daddy?” This is an open-ended question with no pressure to answer either way, as long as no disparaging tone of voice or facial grimaces accompanies it. Recording questions such as these will go a long way for your side if the case goes to court. It may also encourage the court to provide some counseling for the child.
Children have returned from a visit with a parent, grandparent, relative, or babysitter with stories of being shut up in locked rooms or closets, of being hungry or left alone for hours, and of physical abuse. Parents would much rather believe that stories such as these are tall tales or dreams, but the horrible truth is that these things — and worse — actually happen. Counsel your client to never accuse her child of lying when he tells stories such as these. Help your client find the truth before making judgments.
Do children ever lie about abuse?
Children have lied about being abused. However, it's not the norm. The act of abuse is so heinous and the effects so far reaching, it is incumbent upon society and those closest to the child to investigate an abuse allegation thoroughly, rather than dismiss it because a few cases have been proven to be false. Fear of not being believed is one of the reasons that children don't report abuse.
Men aren't the only abusers of children. Statistics reveal that 25 percent of reported abusers are women. Many boys have reported that they were confused when an older woman initiated sexual relations with them, mainly because they believed the myth that males should enjoy sex with anyone at any time. Later in life, many feel the need to seek counseling or to explore their feelings about what happened. Abuse of a minor is still abuse, whether the minor is a male or female, and the ill effects can be equally damaging upon either sex.