I posted a blog article titled Sexually Transmitted Diseases and Alimony Proceedings on October 16, 2010. In it I promised a follow-up article discussing the status of Ohio law concerning domestic or marital torts.

In Ohio, like in most states, interspousal tort immunity has been abolished.  A person may bring a personal injury action against his current spouse or between a former spouse for personal injury which occurred during the marriage.  Marital torts can include any claim for personal injuries and are often referred to as domestic or marital torts because they are torts that occur within the family context, such as between spouses. Marital torts, moreover, can be lodged in connection with intentional or negligent acts, including the transmission of sexual diseases, psychological distress and emotional injury, slander and libel.

As in all torts, there must be a violation of some duty owed to the plaintiff, and generally that duty must arise by operation of law, not merely an agreement between the parties.  Torts are civil actions arising from the conduct, deliberate or careless, of one individual in dealings causing harm or damage to another; and they also arise as a result of intent or negligence. Intentional torts, which may result in civil and criminal liability, include such actions as assault, battery, false imprisonment, libel, slander, intentional infliction of emotional distress, invasion of privacy, wrongful death, interference with business. Negligent conduct results from a deviation from the standard of care a reasonable person is expected to exercise.

One of the more common domestic tort actions involves a claim for the transmission of a sexually transmitted disease. It appears that many states have considered these types of cases under many claims, such as negligence, fraudulent misrepresentation, and intentional infliction of emotional distress, battery, and assault. However, Ohio case law suggests these types of cases have been brought primarily under negligence and/or fraudulent misrepresentation claims. To prevail with a negligence claim for the transmission of an STD, “a plaintiff must show that defendant knew or should have known, at the time of their sexual contact, that he was capable of transmitting a communicable disease.” But for any claim one brings for recovery of this injury, the elements of that specific tort must be met. This is where proof problems may come into play. For example, a plaintiff to a negligence claim may have great difficulty proving the defendant knew or should have known about the disease. Also, it may be difficult for the plaintiff to prove he/she contracted the STD from the defendant, especially since some STDs are curable and no trace of it remains in the person.

In Ohio, if a party files one of these domestic tort claims along with a divorce/dissolution action, the tort claim must be considered independently of the divorce action and would typically be filed in a different Court from the divorce proceeding.  Domestic tort actions are still fairly rare in Ohio, although litigation of domestic tort cases in some other states appear to occur more frequently. A word of caution: if a party to a divorce or dissolution is contemplating filing such a tort action, care must be taken not to include a “general release of claims” provision in the decree. Doing so could bar that claim completely!

When we hear “abusive behavior” we often think of physical violence. Abusive behavior is not always physical. Even though there may be no visible wounds, abusive behavior can be very damaging to the individual, the relationship and the family. Consider if these abusive behaviors are present in your own relationship.

• Criticizing you, your friends, family, job, or anyone or anything important to you. 
• Blaming you for everything.
• Making fun of you in front of other people. This includes remarks about your looks, family, job, or sex.
• Demanding that you account for all your time.
• Listening in on your phone conversations.
• Reading your mail or e-mail.
• Isolating you from your friends and family.
• Yelling, throwing things, slamming the counter, slamming doors, punching walls.
• Using sarcasm.
• Ordering you about.
• Controlling or limiting your access to money.
• Discussing you behind your back.
• Demanding s/he have everything done her/his way.
• Controlling what you wear.
• Forcing you to have sex or to do sexual things you are not comfortable doing.

Some women have commented, “Well, he does some of those things, but don’t all men?” No, not all men behave this way! It is not normal to hurt the person you love. This is abuse and women aren’t always the victim. Men sometimes find themselves the target of their wife’s verbal assault.

Regardless of who is doing the abuse, the advice for abused spouse is the same. Stand up to your spouse and let him/her know that this behavior is unacceptable. You do not have to be abusive back. State calmly that it is not acceptable. Don’t threaten or yell. That only challenges the abuser to try to control even more. Underneath the bravado, abusers often feel weak and insecure. By intimidating you and making you feel bad about yourself, they make themselves feel powerful. By knocking you down emotionally (“Who would want you?”), they think they make it impossible for you to see you have other options. Seeing the behavior for what it is can help fortify you to make changes. When to talk to the abusive party, don’t try to analyze their behavior, he/she will only guffaw and act worse. Talk about yourself. Stay focused on your choices and needs.

One important word of caution: If s/he lays a hand on you – a slap, push, or punch – it is time to leave. Maybe not forever, but until s/he gets help. Without professional help, physical abuse escalates. When a spouse has crossed that line from hitting the counter to hitting you, then it is time to go. Without help, it will only get worse. Don’t think, “Oh, s/he would never do that.” Many women who lost their lives to domestic violence said the exact same thing.

You really can’t change another person. They have to want to change. What you can do is change yourself. By no longer accepting unacceptable behavior you shift the focus from your partner to yourself. Consider your options. What do you want from your life? A need to be treated with dignity, respect and love is not asking for too much! If a partner is unable to do that, then make sure you treat yourself that way. Think of it this way: While you may not be able to stop someone from throwing snowballs at you, you can certainly duck. Get out of the way and move on!

©2005/2011. Donna F. Ferber, LPC, LADC, is a licensed psychotherapist in Connecticut. Her newest book is available at bookstores everywhere, Amazon.com or at www.profileactics.com. This article is from her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work or for a direct link to Amazon, please visit www.donnaferber.com

Most of us are familiar with Child Protective Services, or CPS.  CPS, or an agency with a similar name, is the agency in each state that has assumed the task of protecting our kids from abuse or neglect by adults, especially their own parents. A recent study explained in the October 2010 issue of Archives of Pediatrics and Adolescent Medicine suggests that child abuse investigations do not significantly reduce risk for future violence or abuse.  In fact, the study links investigations to increased depression in mothers.  The results have given ammunition to many who had already been calling for a drastic scaling back of CPS and the many millions of dollars that Congress and state legislatures annually direct towards CPS.

Congress passed the Child Abuse Prevention and Treatment Act in 1974 because of concerns about battered children.  That Act was also designed to encourage more thorough and accurate reporting and record-keeping in child abuse cases.  These days, the role of CPS has grown and evolved.  In 2007 alone, CPS nationally investigated more than three million cases of suspected child abuse.  Today, CPS also enjoys almost unlimited investigative and search and seizure powers, much greater than that of police, that can quickly trample a parent’s constitutional rights.

The Archives of Pediatrics study examined the records of 595 children nationwide.  All the children shared a similar high risk of maltreatment and all were tracked over a four-year period.  The authors used data from interviews conducted with the children’s maternal caregiver, first when the child was 4 years old and again at 8. During those four years, Child Protective Services investigated the families of 164 of the children for suspected child abuse.  The authors found that during the interviews at age 4, households of children in the investigated group had lower family function and more poverty than households of non-investigated children.

Four years later, the researchers interviewed all the families again and compared the 164 children who had been investigated to the 431 families who had not been investigated.  The researchers looked at seven factors known to increase the risk for abuse or neglect.  Those factors included poverty, social support, family functioning, caregiver education and depressive symptoms, anxious or depressed child behavior and aggressive or destructive child behavior.  Surprisingly, researchers were unable to find any differences in the investigated families compared with the uninvestigated families in any of those factors, except that maternal depressive symptoms were worse in households with a CPS investigation.

Those results did not come as a complete surprise to many of the researchers.  They pointed out that when CPS intervenes and services are offered, CPS usually takes aim at immediate risks – substance abuse or domestic violence, for example – not ongoing problems like poverty or poor social support.  The interventions performed by CPS in the study, whatever they were, apparently failed to reduce the risk for future child abuse.

Researchers postulated that the increased maternal depression could have been because the investigated families were at a greater risk to begin with and that their investigation helped them to recover to the expected level of risk.  If that theory were true though, the authors surmised that households with recent investigations should have had greater risks than households with more distant investigations.  The results found no such association.  That led researchers to the conclusion that Child Protective Services investigations had little or no effect.

Many of us are familiar with stories where Child Protective Services has entered a situation, not nearly as bad as it was presented, and removed children from a stable parent or home.  This track record of CPS leaving behind a trail of broken homes has left some screaming to scrap CPS altogether.  Phyllis Schlafly, a lawyer with WorldNetDaily.com, has recently written an article titled “Shut Down Child Protective Services”.  In addition to discussing the Archives of Pediatrics report, Ms. Schlafly pointed out that the researchers did not look at the harm caused by “CPS bureaucrats who arrive unannounced with the police, interfere with a functioning family, and often take the children away from their parents and turn them over to foster care.”

To illustrate her point, Ms. Schlafly described two cases involving Child Protective Services that are presently before the U.S. Supreme Court.  In Camreta and Alford v. Greene, an Oregon court found that CPS investigators violated a 9-year-old girl’s constitutional right against unreasonable search and seizure.  The case involved a CPS caseworker and a deputy sheriff interrogating the girl about possible sexual abuse at home.  The caseworker and deputy interviewed the girl for two hours without a warrant, a court order, parental consent or exigent circumstances.  Those facts caused Ms. Schlafly to then question why some governmental agencies, such as CPS, seem to be more concerned with guaranteeing constitutional due process to, say vicious criminals, than to parents.

The other case cited as being before the Supreme Court, Los Angeles v. Humphries, has already been briefed and argued.  That case involves the constitutionality of the child abuse index, or list, that is maintained by Child Protective Services in California.  More than 800,000 people are currently listed on California’s child abuse index.  CPS puts people on their list from agency reports that are based on anonymous tips and suspicion, not proof.  (The child abuse registry should not be confused with the sex offender registry, which lists only those who have been convicted of sex crimes.)  The child abuse registry puts individuals on the list who have never been proven guilty of anything or even charged with a crime – a punishment that entirely goes against our legal assumption of innocent until proven guilty.

As a divorce attorney, I can see how it would be awfully easy for a malicious wife or ex-wife to allege child abuse as part of her game plan to get child custody or increased child support.  As one might imagine, being listed on the index can be very hurtful to individuals since employers consult the index before hiring employees to work with children.

The big issue in Humphries is the fact that there are no procedures, no standards and no criteria for a wrongly accused person to get his or her name off the child abusers index.  The Supreme Court is reviewing the Ninth Circuit ruling that Craig Humphries (whom the court found innocent of all charges) had a “nightmarish encounter“ with the California system, and found “there is no effective procedure for Humphries to challenge the listing.”

Congress toyed with a plan to create a national child abuse registry in 2006, but ultimately decided that the unreliability of state lists and the lack of due process were too much to overcome.  The U.S. Supreme Court is obviously concerned with those same issues in Humphries.

The research results that were published in Archives of Pediatrics were accompanied by an editorial entitled, “Child Protective Services has Outlived its Usefulness” by Dr. Abraham B. Bergman.  In it, Dr. Bergman suggests some serious changes be made to the way CPS does business.  He believes that because child abuse is a crime, it should be investigated by the police.  Because issues of neglect concern a child’s health, Dr. Bergman contends that public health nursing services should be the first to respond to concerns of child neglect.  Finally, he thinks social workers should assess appropriate living situations and work with families to obtain services, rather than focus on law enforcement like they so often do.

Not everyone, though, takes the results of this study as proof that CPS should just go away.  Dr. Kristine A. Campbell, the lead author of the study, believes differently and states that it may be too easy to blame Child Protective Services.  “I believe that CPS has a critical role,” she says.  “As a pediatrician, when I’m there in the middle of the night with a child who has been beaten up, I need them.  But we have to look at other systems that can really create a safety net for these children.”  Dr. Campbell then said, “I don’t believe that CPS has outlived its usefulness.  The problem is that someone needs to continue working with these families – those risk factors don’t go away, and I’m not sure we should expect CPS to deal with them.  CPS deals with acute issues.  We don’t know how to deal with what remains.”

I believe that Dr. Bergman would tend to agree.  His editorial summarized the situation that CPS faces today: “The concept of Child Protective Services was idealistic when it first came into being in the early 1970s.  Initially, the task of identifying non-accidental trauma was relatively straightforward because it was the classic ‘battered child’ that was among most frequent diagnoses.  Much has changed in the child welfare field over the past 40 years, notably the types of child maltreatment seen and the explosive growth of the foster care system.” Dr. Bergman continues, “How has CPS responded to these changed responsibilities?  Not well, according to this study by Campbell and colleagues in this issue of the Archives.  This gloomy prognosis notwithstanding, the changed picture of child maltreatment in the United States demands, at the very least, that we begin a wide-ranging discussion and testing of alternative responses.”

The topic for this particular article concerns Ohio’s Domestic Violence Statute which is O.R.C. Section 3113.31.  In it “domestic violence” is defined as the occurrence of one or more of the following acts against a family or household member:

• Attempting to cause or recklessly causing bodily injury.
• Placing another person by threat of force in fear of imminent serious physical harm or committing a violation of section 2903.311 (menacing by stalking) or section 2911.211 (aggravated trespass) of the Ohio Revised Code.
• Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Ohio Revised Code.
• Committing a sexually oriented offense as defined in section 2950.01 of the Ohio Revised Code.

Some readers may be wondering, “what is a Civil Protection Order?”  A Civil Protection Order (CPO) is an Order that can be granted by a Court upon hearing a petition alleging domestic violence.  It is initiated in the Common Pleas Court usually in the Domestic Relations Division. This is the civil counterpart to a criminal Temporary Protection Order (TPO) which is often issued against a defendant charged with a crime such as domestic violence, menacing or assault. The criminal TPO will only stay in effect as long as the criminal action is pending. When the criminal case is over, the TPO ends. It is not uncommon for both a TPO and CPO to be in effect at the same time.

The Civil Protection Order directs the Respondent to do or perform certain actions such as:

• To refrain from abusing or from committing sexually oriented offenses against the family or household members.
• To vacate the premises and granting possession of the residence or the household to the Petitioner or other family or household members.
• Allocating temporary parental rights and responsibilities (custody and visitation) of any minor children of the parties.
• To provide for financial support of the Petitioner and the minor children of the parties.
• To seek counseling in regard to the domestic violence.
• To refrain from entering the Petitioner’s residence, school, business or place of employment of the Petitioner or other family members.
• Such other relief that the Court considers to be equitable or fair.

To learn more about civil domestic violence proceedings in Ohio, click here to read an article posted last year on our blog about this subject.

Going back to the initial question or inquiry for this article, if a spouse has been verbally abusive to his or her spouse, does the verbal abuse rise to the level of domestic violence?   What is verbal abuse?  We hear about it all the time…common examples that I hear from clients:

• He/she calls me the “b” word.
• He/she says that I am lazy and that I need to get off my a… and get to work.
• He calls me a whore and says that I am no good!
• He calls me the “c” word.
• He/she tells me that I am no good and a horrible person and mother/father.
• He/she tells me that I am worthless and useless and should leave the home.
• He/she tells me that I am crazy and a “sicko”!

A review of the holdings in three recent cases by the 2^nd District Court of Appeals for the State of Ohio might be instructive:

CASE STUDY ONE:

On January 14, 2005, Husband and the parties’ 18-year-old daughter returned to the home near midnight.  Husband was in a drunken state and began to argue with Wife.  Husband used rude and vulgar language toward Wife.  The argument ended and everyone went to bed.

The next morning another argument ensued between Husband and Wife.  Husband again used rude and vulgar language.  The loudness of the argument wakened the daughter and she came downstairs to see what was happening between her parents.  When Wife indicated she was going to call a friend for assistance, the daughter grabbed and twisted her Mother’s arm.  Wife threatened to call the police and Husband and daughter left the home.  When the police arrived and heard Wife’s story, the officers advised her to seek a Civil Protection Order (CPO).

During the CPO hearing, Wife testified that she was in fear of her daughter and her Husband.  She then told the Court about an incident that had happened five (5) years earlier wherein Husband had used a mallet to smash the window of her car as she was trying to drive away from the home.

Although the Trial Court found that Husband did not touch Wife and did not threaten her,  a CPO was granted based upon the earlier incident involving the smashed window.  Husband appealed the decision of the Court.

The 2^nd District Court of Appeals reversed the decision of the Trial Court finding that the earlier incident was too remote in time to be relied upon now.  The Court of Appeals also felt that Husband’s behavior on January 15, 2005, was not sufficient to place Wife in “fear of imminent serious physical harm”.  Young v. Young (2006 Ohio 978; 2006 Ohio App. LEXIS 900).

CASE STUDY TWO:

On December 11, 2002, Husband, believing that Wife had taken from his jacket a slip of paper reflecting a certain telephone number, began yelling and cursing at Wife.  When Wife threatened to call the police, Husband pushed her and ripped the phone from the wall.  Wife states Husband continued to scream and curse at her and broke/disabled a second telephone.  Police responded to a call, arrived at the home, but did not arrest either party.

Husband’s version of the incident is that he did not shove or push Wife and that she slipped and fell when he tried to pull away from her.  Further, Husband denies that he screamed or cursed at Wife and denies that he threatened her.

Later that same afternoon, Wife went to a local police station and provided a statement to a police officer.  When the police officer asked Wife if Husband had used any violence against her, she replied in the negative.

Procedurally, the Magistrate granted the CPO to Wife, and initially, the Trial Court adopted the Magistrate’s Decision.  Husband responded by filing Objections to the Magistrate’s Decision. Subsequently, the Trial Court agreed with Husband relying upon Wife’s statement to the police officer wherein she denied there had been any violence.  Wife appealed the ruling of the Trial Court.  The 2^nd District Court of Appeals affirmed the Decision of the Trial Court in dismissing the CPO on the basis that Wife’s statement to the police officer was that she did not fear imminent serious physical harm.  Rank v. Rank (2003 Ohio 6524; 2003 Ohio App. LEXIS 5820).

CASE STUDY THREE:

During the summer of 2002, Husband and Wife were engaged in an argument.  Wife was yelling at Husband as he tried to exit the room.  As he was trying to leave, Wife yelled something to Husband that made him “snap”.  He walked over to her and grabbed both of her arms.  This action caused Wife to fall backwards on her heels.  Husband gripped her arms ever more tightly and lifted Wife up so that she could regain her balance.  Husband then let go of Wife’s arms and apologized to her.  The foregoing facts were corroborated by their son’s testimony in Court.

The Trial Court found that this altercation was an isolated incident which was apparently resolved by the parties as they continued to live with one another until April, 2003. During that month, there was an incident between Husband and Wife;s daughter who had missed her school bus one morning.  While Husband drove her to school, the daughter suggested that he was driving recklessly and with anger.  During the trip, Husband told Wife’s daughter that he was going to kick her and her mother out of his home.  Husband also made threats about Wife to a mutual friend and again alleged he was going to have Wife removed from his home.

Wife filed for a Civil Protection Order and was initially granted a CPO by the Magistrate.  The Trial Court later vacated the CPO finding that the events taking place in April, 2003, did not violate the domestic violence statute.  Wife appealed the Trial Court’s Decision and the matter was addressed by the 2^nd District Court of Appeals.  While the Husband denied driving angrily or recklessly, the Court found there was no testimony of threats of force sufficient to satisfy the definition of domestic violence.  With regards to the verbal abuse, the Court found that Husband’s alleged threats (to remove Wife and daughter from his home) did not rise to the level of causing Wife to be fearful of imminent serious harm.  Tyler v. Tyler (2004 Ohio 5784; 2004 Ohio App. LEXIS 5220).

CONCLUSION:

The Courts seem to agree that verbal abuse on its own is not sufficient to cause a reasonable person to believe that he or she was in fear of imminent serious physical harm.  To obtain a Civil Protection Order, one party must be able to convince a Magistrate or Judge that he/she was threatened by the use of force and that he/she believed that imminent serious physical harm would take place or that, in fact, serious physical harm did occur during the violent incident. To learn more on this subject, click here to go to the Ohio Domestic Violence Resource Center’s website.

The single most dangerous element in living with an abusive man is your denial of the problem. More women are killed by their domestic partners than by the hands of strangers. If your spouse has shown any of the signs or symptoms of being abusive, it is extremely important that you get help. Depending upon the situation, help comes in all forms from seeking counseling to calling the police. The way to find out what intervention is most appropriate for your situation is to call the women’s shelters in your area. Even if you do not need “shelter” in a physical sense, the shelters can provide you with invaluable information anonymously and for free! If you do not have a shelter in your area, chances are the closest big city will have one. All of the shelters have toll-free lines, so it doesn’t matter which one you call. All calls are kept anonymous for your safety. The caseworker at the shelter can assist you in figuring out what you need to do to be safe. Some women feel embarrassed to call the shelters; they believe they should be able to handle it themselves, or their problem is not as bad as other women’s. They may believe that because they are middle class or professional women, the shelter is not for them. This kind of thinking is a form of minimization, which adds to denial. It can be lethal. The shelter is for any woman who thinks she may be abused. No one is turned away.

Until you can access help from the outside, there are some things you can do in the house to make yourself safer:

• Keep an extra set of car keys hidden somewhere that your husband doesn’t know about. Abusers often trap their wives by preventing their leaving.
• Entrust one friend with your story who will let you come to them in an emergency. This should preferably be a person your husband doesn’t know.
• If you have a cell phone, keep it with you (and charged) whenever he is around.
• If you can, sleep in separate rooms and keep the door locked.
• Some abusers have patterns; if you suspect your husband will be violent, leave the house.
• Keep extra clothes for your kids and yourself at a neighbor’s house or in the trunk of your car.
• Always keep a full tank of gas.
• If there are firearms, try to get them out of the house; or at the very least, keep the ammunition in a separate place.
• Never argue with your husband when he is under the influence of alcohol or drugs.
• Keep some money in a place where your husband can’t find it.
• Have a get-away plan in place.
• ALWAYS TELL YOUR ATTORNEY!

Even if you think this doesn’t pertain to you, consider doing some things to make yourself safe, even if it feels like a silly over-reaction. It is better to be safe than sorry. You owe that to your children, family and friends. Most of all, you owe it to yourself. Maybe one day you will look back and laugh at being overly cautious, but maybe one day you will look back with gratitude that you were prepared.

While this is written in a gender specific style that suggests this is only a woman’s issue, the number of men being abused by their wives/partners is, unfortunately, growing. For men, coming forward and disclosing the abuse often presents its own set of issues, as men are concerned that their situation will be minimized or they will be seen as “unmanly”. Because much of domestic violence is psychological and emotional, men can fall victims to manipulation as easily as women. Regardless of your gender, disclosing to a trusted party is always the first step toward changing the situation.

©2010. Donna F. Ferber, LPC, LADC, is a licensed psychotherapist in Connecticut. Her newest book is available at bookstores everywhere, Amazon.com or at www.profileactics.com. This article is from her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com

Our guest contributor this week is Judianne Cochran a nationally recognized expert/consultant in the following disciplines: sex offender profiling; false allegations in custody cases; interstate and international parental abduction; interstate custody and parental alienation. She has testified in numerous Courts throughout Ohio and the country. Judi presently resides in Columbus, Ohio.

In recent years there has been a steady and alarming increase in the use of false allegations of vague, unsupported claims of domestic violence and even vaguer claims of child abuse, used solely in an attempt to find a shortcut to a presumed better position in custody cases. What is more alarming is the observation that more often than not the attorneys of record for the litigants making these claims have been those unschooled in and relatively new to the family law arena, who have chosen to step outside their actual specialty and add a minor “division” of family law to their practices. Often, a new, young, unskilled associate is added to the practice to handle these family law issues.

Some of these practitioners use this mechanism so frequently that simply hearing the name of the attorney leads one to assume that automatically there will be a “smoke and mirrors” allegation followed by the attempt to go in the back door to gain at least temporary custody of the child. In most jurisdictions, these attorneys become known through a variety of “word of mouth” referral processes and, not surprisingly, the number of these cases rapidly increases.

The interesting aspect of this “word of mouth” referral network is that the “word” spreads so rapidly.  The litany of “complaints” is so common that I often wonder if there isn’t a publication most of us aren’t privy to that gives instructions. In recent months, I have had an increasing number of referrals bluntly state that they consulted an attorney regarding initiating a divorce with children or a post-decree custody issue and were told to first consider contacting their local child protective services agency. Then, if they manage to get a case opened, the client is advised to come back to initiate the action and it would then be a slam-dunk case to at least temporarily get a sole custody order.  Some have been told to think about the past year and make a list of possible allegations which might be used to get a temporary order, or at least a temporary protection order which includes the child.  When the child is very young, there is a “suggestion” to the client to have the child medically examined because then there is a record of suspicion of sexual or physical abuse.  Many of the practitioners who subtly or otherwise raise this suggestion inform the client that the doctors are mandated reporters so, if the seed is planted, the child protection agency will be required to do at least a cursory investigation.  This, of course, puts the target parent under a cloud even when the allegation is determined to be unsubstantiated.

It is alarming that there is no consideration given to the best interests and well being of the children who are the subjects of this distasteful practice. There is a disconnect in ethics and logic, and there is no awareness that the little conspiracy between attorney and client to create this fraud will traumatize the children involved, sometimes almost irreparably.  While I recognize the narcissism and need for control in the parent who will go to any length to get what they want, I am more appalled at the narcissism and unethical behavior of the attorneys who encourage this “gambit”.  An aspect of this practice that is deplorable is that there is little done by the courts to discourage the practice.  In the family law court there is rarely any sanction against the litigant for perjury, false allegations or abuse of the blatant misuse of the statutes regarding protection orders; and worse, the attorneys who create these nightmares are rarely brought to task, even when their own client testifies that the “game” was created by their attorney.  Since the Court is under no ethical standard to report the bad behavior, it needs to be the ethical and moral obligation of opposing counsel to follow through with the Supreme Court.

When appropriate action is taken, both the Disciplinary Counsel and the Court do follow through.  Attorney Doris Houser Allen from Hamilton County was not only disbarred, but was charged with a felony for helping a client prepare false affidavits.  At her sentencing for the felony charge, Judge Steven Martin called her behavior “reprehensible”.  Her client, Sylvia Huff, however, even after admitting to the set-up and false allegations, just blamed Allen for the predicament.  Other courts around the country are also beginning to react to this pattern of behavior.  Recently a woman in Manchester, New Hampshire, was sentenced to seven to fourteen years in prison for making false claims of domestic violence during her custody case.  At her sentencing before Judge Kenneth McHugh, Assistant County Prosecutor Jerome Blanchard said that her “folly” was that the claims in criminal court had to be backed up, unlike in family court where she made repeated claims against her ex-husband with impunity.  As he put it, “We’re not in family court anymore”.

This is the sad reality:  Family courts historically do not require proof, ignore the evidence and “err on the side of caution” even when the lies and the unethical behavior of the attorneys involved are exposed.  It is encouraging that this pattern is being exposed and both litigants and attorneys are facing the sanctions they deserve.  However, nothing will happen to either litigant or miscreant attorney until and unless someone steps up to the plate and follows through.

If you are an attorney pleased with yourself about your “winning” games, remember that anyone can bring the complaint against you.  Remember also, as is the case in Allen, your client will throw you under the bus by assuming the “victim persona” you helped create.  Keep in mind that when your client testifies about your “recommendations”, people are listening and paying heed to your behavior.  Today, that clock is ticking and you will be brought to task.  If you are a litigant who has had this “game” suggested to you by your attorney, keep in mind that you, too, can be prosecuted, that you can lose that custody you so coveted that you would cheat and lie to get. My suggestion would be to reject the game and run, don’t walk, to an ethical, skilled Family Law Attorney.  Then, file a complaint against the attorney who gave you the unethical advice.

I am very aware that many people have difficulty in selecting an attorney and understanding the best mechanism for finding one. I will be helping to explain how to navigate through that mechanism in a follow-up article.

In spite of his mom’s death from breast cancer two years ago, 14-year-old Damian appeared to be doing well. He was experiencing typical adolescent issues with independence and responsibility, but seemed to be working those out with his dad. Damian was starting to think about college, motivated by a desire to “always make my mom proud of me.”

I was a bit taken aback when I shared my impressions with his dad. He became very quiet and simply said, “our family is not right. We need help.”

I finally realized that I was focusing on the wrong client. I stopped talking about Damian and instead questioned dad about how he was doing.

Dad spoke extensively about what it had been like over the past few years. He told me the story of the first time he met his wife, the only person he truly loved. They were together since junior year in high school and were each other’s best friend. He talked about how traumatic it was when he first learned of his wife’s cancer, and the painful three years he spent feeling helpless during her ordeal.

His story was one of love, loss and sadness. I’ve been well-trained to avoid overly emotional responses regardless of what a child or parent tells me during a session. That’s hard for someone like me who gets teary eyed at Hallmark commercials.

I met with dad a few more times, and then connected him with an adult therapist who focused on counseling issues around grief and loss. There was no need for me to meet again with Damian.

It’s difficult at times to determine the real reason why parents seek help for their children. For some parents, it is just too hard to initially acknowledge that the root of their unhappiness is more due to their issues than their children’s. Other parents, like Damian’s dad, focus so much attention on their children that they fail to recognize their own depression or other serious problems.

Here are a few guidelines to determine who really needs help in your family:

• If you have any problems with substance abuse, child abuse or domestic violence, first get help for yourself. Kids living in homes with such parents show little improvement until their parents deal with those issues.
• Unhappy marriages lead to unhappy parents. It’s hard to be a good mom or dad if you are in a bad relationship with your spouse.
• Parents with major mental disorders, such as psychosis or mood disorders, generally require medication as well as therapy. Again, focus on yourself first rather than your child.
• The experience of a major traumatic event will affect you both as a person and as a parent, so be sure you deal with those concerns.