So here's the story of the allegation. My client had his visit at his mom's house as usual. A couple of hours after the visit, Lisa calls and is upset because Mia came back in different underwear than she left in. Lisa also claims that Mia doesn't know where they came from, but she says that Jack touched her privates. Jack responded by saying that he had no idea where the underwear came from, and he had not touched her. Then Jack told Lisa that Mia might have put on a different pair after going to the bathroom.

Ten days later, Lisa contacted the police and the child welfare bureau. By this point, Mia is telling everyone Jack touched her. She tells the police. She tells child protective services. Lisa files papers in court asking that Jack's visitation be terminated.

Jack's father takes him down to talk to the police. I should say that I'm not quite in the picture at this stage. I would never have allowed Jack to talk to the police, regardless of whether he was telling me did it or not. It's interrogation time, and Jack is the wrong sort of person to interrogate. I've seen tapes of these interrogations. I've used them in trials. The philosphy of the police is that innocent people don't confess, and that guilty people need to be pressured to confess. Pressure from the police means using every trick possible. They'll lie and say they have witnesses and physical proof. They'll say that everything will go better if the person just owns up to things now. They'll insist that they know the truth already and that the suspect need only confirm things. Every detail of an event a suspect admits to will be used to get them to acknowledget that they did something wrong. I'm certain the typical reader has watched examples of these interrogations on TV crime shows. The difference is that in the crime show, the interrogation takes up maybe five minutes of TV. In real life, the questioning goes on for hours.

Statistics show that there are a lot of false confessions that come out through interrogations like this. In college, I remember one idiot of a student who actually confessed to something he didn't do just to get them to stop asking him questions. He was a nerdy, stuck up kid from a middle upper class, white collar background, and even after having watched the same TV shows that the rest of us have, he felt intimidated and let himself be questioned, completely ignoring the fact they had not arrested him and had no authority to detain him absent an arrest, and if he was arrested he'd have the right to just keep quiet.

Jack has low intelligence, memory problems, and is very trusting of authority figures. He's the last person in the world I would let talk to the police. He went in anyway, and they questioned him for two and a half hours. Imagine the entire movie is just the questioning. Jack didn't admit to anything. The police had no case, and they didn't make an arrest. A four year old's statements are not going to be admissible in a criminal trial, and there was no physical evidence of anything. No confession, no case.

Family Court is a different matter. The standard there is "best interests of the child", and when it comes to allegations of child abuse, the courts are structured to err on the side of caution. The child's statements plus some sort of outside corroboration will result in a finding of child neglect. What sort of corrobation? It doesn't take much. Some sort of noticable impact on the child linked to the act, like difficulty sleeping that a psychiatrist or child abuse expert can link.

The folks at the child protective services decide to believe what Mia is saying. Lisa makes plans for her to see a therapist and files a petition seeking to end Jack's visitation with the backing of child protective. At which point I get assigned to represent Jack.

This is not a neglect proceeding filed by child protective services. It is a private custody modification case. Parents who think their children have been neglected are in a bit of a bind at this stage. If they do nothing, child protective services may find they are not protective of the children, and make a report that it is indicated against them. On the other hand, ideally it should be child protective filing, not the parent. Child protective services has a lot more resources at its disposal than a parent, even with the aid of a free attorney. However, child protective won't file if they feel that a parent already has the situation in hand. Part of what I wanted to do in this case was keep it a custody case; make child protective think that the parent's attorney could handle it.

And really, he should have been able to. The guy on the other side is, not suprisingly, someone I know fairly well. He's been practicing law for about 15 years, for the most part as a solo practitioner. He's decent. Not great or he wouldn't be doing family law, but not bad either. When not in court, he is a friendly guy. Single, but with a steady girlfriend. He runs a poker game with a few other attorneys on Thursdays that I could get invited to if I wanted to. In court on the other side of a case, he's like everybody else. He manuvers as fast and as hard as he can. It's like a competitive sport. You play hard and then shake hands. That isn't to say it doesn't have an impact. When you are on the other side of someone who is throwing punches as hard as they can, it has some impact on things outside the court afterwards. But that's what we get paid for.

So what happens after she files her petition? She is of course, not giving Jack any visitation. I could push the issue and file a violation petition, because her attorney has not filed for a temporary order. But I'm afraid that will just give them more ammo. By the time I'm in the picture it's already been about three weeks since the filing of the petition and a bit more than a month from the alleged incident. The child has spoken with her mother, with the police, and with protective services, and by now even if nothing happened, she might be sort of scared anyway. If she visits with her dad and freaks out, for whatever reason, it just gives them more proof. Jack has witnesses who will say that she was her happy go lucky self at the end of the last visit, and I don't want that being offset. Also, my client having no visitation reassures child protective that things are being handled correctly.

From the other attorney's standpoint, he probably feels the lack of any visitation gives hims bargaining power. My client is hungry to see his child, and no visitation has become the new status quo that my client will want to end. Presumably anything that gets him some visitation and no admition of wrong doing will be good enough. This is what the offer is: no admission - supervised visitation for six months, with the right to reapply for unsupervised after that.

In our courts, kids get their own attorneys, called law guardians. They are supposed to represent what they feel are their child's interests. In cases where kids are older, this means they actually try to urge the court to do what their clients want. In a case like this, the law guardian where the child is younger, the law guardian may just offer the court a view point. In this case, despite my urgings to consider the evidence, this law guardian is coming down against my client.


So I urge Jack to take the deal. We don't have child protective services to worry about, but we have a law guardian who has concerns. The deal would satisfy his concerns but leave Jack without a finding. Jack decides that he is not interested. Jack wants his name cleared. So we go to trial. (Part 3)