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NOTE: This article is offered to provide general information only. It is not intended as legal advice. To find out about your particular situation, please contact me or another qualified attorney. This is a difficult subject; little has been found under Utah law on this point. At the outset it must be stated that the welfare of the child involved is of the utmost importance; the courts in Utah have uttered the well-worn phrase "best interests of the child" innumerable times. And so it should be! Child sexual abuse is an aberrant and damaging behavior. Allegations must be investigated. However, in the civil arena the presumption of “innocent until proven guilty” does not apply. It is my opinion that the opposite dicta applies; the alleged perpetrator is deemed guilty and temporarily stripped of parental rights in the name of protecting the child. This is a very safe and, many would argue, appropriate methodology because it does take time to undergo the investigations and evaluations necessary to effectuate a detailed and telling determination and report; often at the expense of the alleged perpetrator. This procedure does though work as a weapon as well; inappropriate and unfounded allegations abound and there really is no relief under the law to make up for the lost time and damage done to the alleged perpetrator and the relationship between that person and the child. [At the outset, let me state that this is not a scholarly article; rather a brief report of my review of case law and statute illuminated by my practice in Utah. All readers should take this article as general information and opinion; anyone with specific questions should contact and communicate with her or his attorney.] My review of Utah statutes does not show that there is any statutory basis for such relief. There are some statutory references to notices being given if the State finds the allegations to be false, however, understand that if the allegation is against you, you may only have a limited time to file any objection, 30 days. But there is no clearly defined relief for a person who is falsely accused in a divorce situation. I have found one case that addressed the issue; that is Peterson v. Peterson, 818 P.2d 1305 (Utah App. 1991). In that case, the father made allegations that his wife had sexually abused the child. Dad gained temporary custody and subjected the child to repeated examinations. The court determined that the trial court's determinations would be upheld and in essence Dad lost custody and was ordered to pay a substantial sum for fees and costs to Mom. So, where does that leave you if you've been accused of such terrible acts? If you are in litigation, particularly in the larger population counties, you need to understand the commissioner system. In those larger counties, court commissioners hear all motions before going to a judge, and such hearing is not an evidentiary hearing. That means that there are no witnesses sworn, nor is cross-examination allowed. The commissioner hears proffers and reviews affidavits or documents, then hears arguments and makes a recommendation. Then if you want, you can appeal that recommendation to the judge and you may be able to obtain an evidentiary hearing, though such is not likely from my experience; it costs the client extra money to re-do the hearing. But, if you can prove the falsity of the allegations, then you had best get that into trial. Arguably, any settlement, either through counsel or mediation, could work as a waiver of those claims. You will need to balance the truth against the cost of trial! A truly expensive situation. If new allegations arise after the divorce, by way of a petition to modify visitation or custody, you will be in essentially the same situation. You would need to go through the same basic issues and costs. Bottom line, during the litigation of a divorce or modification of a decree: such actions and interference with the relationship may be a basis for a change of custody. There is a statutory basis for the proposition that interference with visitation can be a basis for a temporary change of custody. However, that requires going to court and obtaining such a finding three times (and in Salt Lake County, going to mandatory mediation about the interference with the visitation). In other areas of law, the alleged perpetrator may be able to proceed in a civil action against the other person for damages; however, such actions require a separate suit and cannot, by case law, be brought in the divorce action. Claims of defamation, fraud, or intentional or negligent infliction of emotional distress could be raised. A person's success would depend entirely upon the facts of the case and there are statutes of limitations, time constraints in which an action must be filed, which apply and could limit one's ability to bring suit. The best thing here would be to simply communicate with one's attorney. On a totally different note, if you are a person who can show legitimate abuse, either to yourself or to a child, you may have similar causes of action against the perpetrator. However, that is a whole other topic of discussion beyond the scope of this writing. In summary, a parent falsely accused of abuse does have options available to redress the wrong done; none are easy and there are no "clear-cut" guidelines or statutes. Each matter is fact sensitive and requires the review and input of counsel -- and probably a good amount of work. When it comes to child abuse, there are no clear-cut answers and the court will usually err on the side of the safety of the child, protecting the child from the alleged abuser. Right or wrong, it is what most of us would do -- it is the safest thing for the child. But when the allegations are false, then relief should be pursued. © 2003 David R. Hartwig, Esq.
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