VII. Weapons

"Weapons" are the false allegations by the alienating parent of behavior on the part of the target parent inimicable to the welfare of the child.  The most commonly used weapons are false allegations of: 

• threats of or actual domestic violence;

• sexual abuse of the child;

• physical abuse of the child;

• emotional abuse of the child;

• mental illness on the part of the target parent;

• alcoholism/drug abuse/homosexuality on the part of the target parent;

• threats of moving or flight by the alienating parent.
  

Even when such an allegation is made in the context of high conflict litigation, it must be taken very seriously on its face and fully investigated to determine its validity.  Each allegation accuses the target parent of behavior harmful to the child. Safety of the child is paramount.  Neither the courts, the lawyers, the therapists or, perhaps, the parents, want to risk the welfare of the child when there is a possibility that the accusations might be true. 

By their very nature, the allegations shift the emphasis of investigation onto the accused, the target parent.  Several of the accusations are of very private behavior, in the home only, which behaviors are difficult to prove and/or disprove. 

Most domestic violence remains invisible despite the increase in awareness of the problem.  Under New Hampshire procedures outlined in NH RSA 173-B, a complaint of domestic violence taken to court together with a request for exclusive custody can give the complainant a considerable advantage in the legal system. 

Custody can be gained in an ex-parte proceeding.  A sworn claim of violence or the threat of violence is all that is needed.  Extrinsic proof of danger or harm is rarely requested, and Judges make no inquiry whatsoever into the nature of prevailing custodial arrangements.  In most cases, the procedures are appropriate and the protection given critical to the life and safety of domestic violence victims and their children.  In rare cases, the procedures afforded to domestic violence victims are manipulated to gain advantage in custody cases without being grounded in real fear of physical violence. 

Attorneys are bound by their own ethical rules not to knowingly mislead a tribunal. ^[24] It is highly questionable practice to refer clients who have not suffered domestic violence or the serious threat of it to court for the quick relief afforded such victims under NH RSA 173-B, although the New Hampshire District Court Judges report an increasing number of such custody cases.^[25]  Advising a client to gain a tactical advantage by using the emergency procedures afforded under NH RSA 173-B may violate the Code of Professional Conduct even if the attorney is not involved in the presentation of the case to the court. 

Allegations of abuse of a child (physical and/or sexual) may be fabricated but may also be absolutely accurate; in all instances, but especially in the context of a custody battle, such allegations need to be dealt with immediately by a competent professional who fully understands: (1) sexual and/or physical abuse of children; (2) family systems; (3) divorce and custody litigation and the impact of lawyers and the legal system. 

Sexuality triggers intense feelings in all listeners, and fear and panic may, at times, obscure reason.  Some litigants have learned to use to their advantage the irrationality that can attend allegations of sexual abuse.  We caution all involved: get professional intervention immediately with a coordinated, systemic evaluation of both the allegations of sexual abuse and the family system that has produced the allegation. 

Allegations of physical abuse are not used often in the context of custody litigation, perhaps because physical abuse is usually easier to detect than sexual abuse, making it easier to prove or disprove.  When the allegations are made and sufficiently established to cause concern in the Superior Court, the court or the parties involved must refer the case to the Division for Children and Youth Services under NH RSA 169-C. 

If it is unclear that there is in fact abuse (sexual or physical), then the allegations may have been produced by the intensity of feelings about the divorce, the fear of abuse and a misreading of a particular situation.  However, the failure to disprove the allegations will paralyze the system to the advantage of the alienating parent because the emphasis of the Court and the professionals must be on the protection and safety of the child.  Unless disproved, these suspicious allegations cast a pall of potential harm to the child that no one person, institution or agency will have courage enough to ignore. 

We believe that it is important to establish a baseline of facts upon which all persons involved in the divorce impasse system, family and professionals alike, can rely for future decisions regarding visitation and custody.  Because of the emotionally charged atmosphere sexual and physical abuse charges generate, we believe that no one person should be responsible for establishing those facts.  Therefore, we suggest that advisory juries be empaneled to aid the judge in his findings regarding the allegations of abuse. NH RSA 519:23; NH RSA 491:16. ^[26]  Unless this is done and reliable facts are established in these cases, an accused will always be treated as guilty unless proven innocent with regards to contact with the children. 

Accusations of alcoholism, mental illness or homosexuality also place a burden on the target parent to prove fitness to be with the child, but these factors are less potent in most custody litigation today than they used to be.   It is easier to prove or disprove alcohol or drug abuse or mental illness as the behavior is not necessarily private.   These accusations also do not directly implicate parenting capacity in the same way allegations of physical or sexual violence do, and the courts are routinely requiring that litigants prove a nexus between the alleged behavior and harm to the child. 

Another weapon is the threat of moving, or the actual flight of the alienating parent.  The court must immediately look to the motive, spoken or unspoken, for the move; if the motivation is to keep the target parent away, this is a clear red flag that the alienating parent will stop at nothing to achieve an exclusive relationship with the child. 

No matter when a "weapon" shows up in the course of the litigation, the fact of its allegation must lead directly to a full systems evaluation by a qualified, competent professional.  It serves as an indication that the alienating parent knows no bounds and that education, information and behavior management will be insufficient interventions.  The courts must look to the long term best interests of the child in terms of custody because the alienation process will continue.  The use of a weapon should catalyze the system to the evaluation of the custodial capacities of each parent. 

An expert must look at the entire system, assess the truth and relevance of the allegations, the motivation for the allegations, assess the safety and welfare of the child and make recommendations as to the best placement and visitation arrangements for the child. 

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