Custody Disputes – Parent Reporting Child Abuse

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Avoiding Liability Bulletin – June 2011

…Suppose that a client enters into a professional relationship with a counselor or therapist and explains that her marriage is falling apart. The kids are being negatively affected and she needs someone to help her through this stressful situation. She describes herself as being depressed. Not long into the professional relationship, the client tells the practitioner that she is concerned about her daughter, who is 11 years of age. She suspects that the daughter may have been sexually molested by her husband, the father. The client brings the daughter in for evaluation and treatment. Before the practitioner can determine whether he or she has a reasonable suspicion of sexual abuse, the mother files a child abuse report with a child protective services agency. The child abuse investigation results in a finding that the abuse was not substantiated (the investigation report is “inconclusive”).

In the custody litigation, the father claims that the wife should not be awarded custody because of her attempts to manipulate the system so as to gain an advantage with the judge. How might or should the Court view the matter? If the wife made a lawful report of suspected sexual abuse of the child, the Court should not, solely because of such report, punish her in any way that affects her rights to custody or visitation. It must be remembered that the standard for reporting, both for mandated reporters and those who are “permissive” reporters, is not limited to knowledge (perhaps the result of an admission or an observation), but rather, includes situations where there is “reasonable suspicion” (or, depending upon state law, a similar term) of child abuse (e.g., sexual abuse by the father of a minor daughter). Many child abuse investigations result in an inconclusive finding – that is, the report is not sufficiently substantiated. In essence, there is simply not enough evidence to determine whether child abuse occurred. Such a result does not necessarily mean that the reporter did anything wrong.

Had the investigation resulted in a determination such as “unfounded,” and depending upon other circumstances (such as critical commentary by the investigator regarding the reporter), perhaps the reported abuse would be found to be false or inherently improbable. In such cases, the court may limit the reporting parent’s custody or visitation. The law may require that there be substantial evidence that the parent who reported the suspected sexual abuse knowingly made a false report. Each state’s laws will vary to some extent (as I often say, the “fine nuances of the law”). It may also have to be demonstrated to the court’s satisfaction that the reporter acted with the intent to interfere with the other parent’s lawful contact with the child. State laws dealing with custody may also require that the child abuse report be made during the pendency of a custody proceeding in order for the court to make an adverse decision against the reporter’s right to custody or visitation based solely upon his or her reporting of child abuse. Alternatively, state laws may be silent on some of these matters.

The fact that the patient brought the daughter to see a licensed mental health professional for evaluation and treatment should not be used against the wife. While the father may allege that this too was part of the effort to position the wife in the custody battle, the mere fact of bringing the girl in for evaluation and treatment should not be able to be used against the mother (assuming that “bad faith” is not demonstrated). In summary, all that the mother needed in order to make a lawful report of child abuse was reasonable suspicion. To not make a report because of a fear that child abuse may not be found by the investigators (perhaps because of negligence, incompetence, or the lack of evidence), is not good for the safety of children. Thus, lawmakers in every state (I trust) have enacted immunity statutes that protect those who report child abuse, whether they are mandated reporters or not. There may be a requirement as a condition of immunity that the reporter acts in good faith – or, not in bad faith.

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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