When a parent is accused of child abuse or neglect during a divorce, it can result in the involvement of Family Services. Laura Schantz, a divorce and family lawyer and mediator in Beaverton, outlines steps parents should take – whether they are being investigated or have requested an investigation of the other parent – to ensure their children are protected and have their needs met during the divorce process.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Laura Schantz, Family Lawyer & Mediator
Founder of Schantz Law, P.C., Beaverton divorce attorney Laura Schantz has been helping her clients reach resolutions to their divorce and family law issues – including asset division, spousal support, and child support – for more than 20 years. As a mediator, she also provides family law mediation services to allow couples to resolves sensitive issues such as child custody and parenting time amicably. Learn more about Laura and her firm by visiting www.oregondivorceattorney.com.
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Read the Transcript of this Podcast Below.
What constitutes child abuse or neglect? What proof is required to establish that abuse or neglect has actually taken place?
Schantz: Obviously, there are different kinds of child abuse. There’s physical abuse, where typically you see a bruise or some other physical proof that a child had been injured. There’s neglect, where the child isn’t being cared for properly, where they’re being not supervised, where there’s not enough food or clothing or they’re not getting to school. Lots of different factors could be neglect. There’s child sexual abuse and there’s also emotional and psychological abuse, and that can take on different characteristics. There are a lot of different ways that Family Services could determine that there’s been some sort of abuse or neglect. The proof of that is based on eyewitness reports, bruises or doctors’ investigations of sexual abuse, and psychologists’ reports. There are all sorts of different types of proof that could lead to Family Services determining that it’s a founded allegation of child abuse or neglect.
What typically leads to Family Services investigations during divorce cases?
Often, divorce cases can become highly antagonistic between the two parents, especially if they are fighting over custody or a parenting plan with the children. Sometimes things happen in one or the other parent’s household that the other parent gets concerned about and they may call Family Services. Also, maybe a grandparent would call Family Services or another family member. Sometimes a child will say something to a school counselor or other mandatory reporter and that person would make a call to Family Services.
What are some of the reasons why you would advise a parent to call Family Services during a divorce action?
I would probably never advise parents to call Family Services. I have had Family Services involved in many, many cases. I’ve been involved in different juvenile dependency cases and Family Services and Juvenile Court, so I have a lot of experience in this area. My opinion, after all of these years of experience, is that Family Services doesn’t necessarily help a situation in a divorce case, and it’s best for a parent, if they’re concerned about their child having been abused in some way or neglected, to have the ability to go to Circuit Court and request a hearing on immediate danger and ask for emergency custody of their child and then schedule a longer hearing to really share what happened and have the court fashion a safe custody and parenting plan for their child without ever involving Family Services.
Would you always advise your client to go to court for this kind of order rather than involving Family Services?
In a divorce case, yes. I would almost always advise my clients to try to take action in divorce court to get their child protected. You have all the ways to protect your child that you need in divorce court. If it was a criminal act that occurred at that point and it was confirmed in a variety of ways, then, at that point, potentially we would contact law enforcement or Family Services.
How does a Family Services referral during a pending divorce action impact the custody determination?
That referral can have a big impact on the custody determination because Family Services will do an investigation. They will want to talk to all the parties and the children. Perhaps the mom and her new boyfriend got into a big argument and there’s some physical nature to it and the children witnessed it. Now, Family Services may come in and say that the boyfriend can’t be around the kids. A different situation is where a child has made some allegation that the parent has abused them in some way. Family Services has to investigate that and may say that things have to be supervised for a while, or they can really get involved and make recommendations that can have serious ramifications for custody.
What should a parent do if Family Services contacts them and wants to discuss an incident?
My advice is that the parents not talk to Family Services. It’s sort of like your right to remain silent in a criminal case. I’ve had so many parents just start talking and tell Family Services all sorts of things. You will find that you will say something that you think is helping you that will somehow be twisted against you. My advice is, do not talk to Family Services. If they are insisting on talking to you, tell them that you will talk to them with your attorney present; that way, I can help the conversation along and make sure that my client is answering questions in the correct way, in the minimal way.
How are custody or divorce cases resolved when there’s a pending dependency case in Juvenile Court?
In Oregon, we have mandatory consolidation with a juvenile case and a divorce case. It would be heard in the Juvenile Court with the juvenile judge. What typically happens is, both of the cases will run simultaneously, but depending on what’s happening in the juvenile case, you may want to slow the divorce case down to work through different things. For instance, if someone has a drug addiction and they’re going to treatment, you might just slow everything down to get that accomplished and sort of get them back on track in their life. If there are other investigations going on, you may slow the divorce case down to see if you can work on getting your client back up to speed and back into the situation that they need to be in to again try to get custody or parenting time with their child. Then, the divorce case would be heard probably towards the end of the juvenile case and they would schedule a trial in Juvenile Court for the divorce trial. The parents would then have that divorce trial if they’re not able to resolve it in another way.
Can a family law attorney who is representing a party in their divorce case also handle the juvenile dependency case?
Absolutely. I do that often, but it depends on finances. In a juvenile case, it’s similar to a criminal case. You are able to get a court-appointed attorney if you can qualify for it financially. We oftentimes have parents that have their court-appointed attorney and then they’re trying to do their divorce at the same time where their court-appointed attorney does not handle divorce cases. They are typically a public defender, and all they do is juvenile court work. They cannot, under the public defender’s office, represent their client in a divorce case. The client needs to go out and get separate counsel for their divorce case, and you don’t get court-appointed attorneys for your divorce. A lot of people contact me because they aren’t comfortable with the public defender and they want me to help represent them in Juvenile Court, and then I can always do their divorce case as well.
What kind of things can a family law attorney help with to conclude the juvenile dependency case quickly?
Typically, it’s not very quick in Juvenile Court. I think a family law attorney like myself brings a different perspective to Juvenile Court. We have public defenders that are in there all day, every day doing what they do, and we have the Family Services that really has a very strong presence there, pretty much telling everybody how it’s going to be. I think I sort of bring a breath of fresh air in there because I’m not going to agree to everything that Family Services wants to do. I fight differently for my clients and come up with more creative solutions. I have more time to really get working on the case and moving the case forward than maybe a public defender with a huge case load. I think it just turns out a lot better for my clients when they have someone that knows the divorce side and the juvenile side and can kind of work them together.
What should a separated or divorced parent do if Family Services is investigating him or her for an allegation of physically or sexually abusing their child?
First of all, they should get a lawyer. Family Services investigations can have criminal investigation consequences, too. Sometimes law enforcement is investigating at the same time. Even if I was contacted to assist in the case, I might be also contacting a criminal lawyer to help my client because I’m concerned about criminal charges, and that raises even a higher bar that I do not want my client talking to Family Services or law enforcement. My client has the right to remain silent. Oftentimes, your own words are the words that end up making it that there are founded allegations of abuse or that you have become charged with some sort of a crime. If you had not said anything, there would not have been these charges brought against you. I truly advise my clients to get attorneys involved to help them through the process.
What should a divorcing parent do if Family Services is investigating him or her for neglect or endangerment due to substance abuse or mental health concerns?
I would not be talking to Family Services. I don’t know that law enforcement would be as involved in the situation like that. I as an attorney getting involved in that case would be warning my client, if these allegations are true, to get going on getting into treatment right away. I’d try to make my client take responsibility for what’s really going on in their life – actively get them moving in the right direction much, much quicker than sometimes the public defender might do, where it just sort of waits until the Family Services has completed their investigation, made recommendations, and then it takes months for them to give the client a treatment place they could go to, and then you’re on a waiting list and it just takes so long. What I would do is try to find it right away on my own and get the client in there right away working on their problems quickly so that the case can go much quicker and they can get their lives back together and get their children back much, much quicker.
If a separated or divorced parent has a new live-in partner or spouse and Family Services is now investigating him or her for failure to protect their child from an abusive spouse or new partner, what should they do?
They should talk to their attorney. They shouldn’t talk to Family Services. At that point, I would be very strong with my client to separate from the partner for the time being immediately. Because, if the parent separates from their partner, their children will not be removed from their home. If that’s the only allegation, this other partner is abusive, but they are a good parent and they separate that person out of their home, then their children will stay there with them. Meanwhile, we can work with their new partner to try to work on whatever issues that person has – whether they need to go to anger management, domestic violence classes, parenting classes, or they have some sort of substance abuse issues. That person can start working on his issues or her issues, but the children will remain in the home with their legal parent – that’s the best solution.
What is a safety plan and when is it used?
A safety plan is when Family Services comes to us, case is done, and they determine, for instance, you can have your children in your home but your partner cannot be around them or your partner cannot ever be left alone with them but can be around them supervised. Different safety plans are just ways to make children safe, and Family Services tries to get the parent to sometimes voluntarily agree to a safety plan. If there is a case that is actually filed against that parent, then Family Services will require that they sign the safety plan, which can have all sorts of different things on it like, you won’t use physical discipline on your children, you won’t drink around your children, you won’t have the children around certain people – all sorts of different things depending on what the allegations were.
Is it always Family Services that creates the safety plan, or could a parenting coordinator help with that in a divorce case?
If Family Services is not involved in the case, we do create our own parenting plans in divorce cases through attorneys, parenting coordinators, mediation, etc. We can make safety plans because I have clients that have concerns – and the concerns don’t rise to the level of some sort of crime, but they are concerned about different things. Let’s say they don’t want the parents sleeping in the same bed with the child because the child is too old for that or there is a certain person in the family that everybody knows has issues and they don’t want that the child left around that person unsupervised. We can put those types of agreements into court orders without involving Family Services at all.
What can a parent who has lost custody or unsupervised visitation following a child abuse investigation do to work towards regaining that custody or visitation?
Those are where the just miracle stories happen and why I like doing this kind of work. I have had parents that have had no relationship with children do all sorts of things to improve their life, to get clean and sober, to take their anger management classes, to take their parenting classes, to go to counseling with their children, and I’ve had it turned around 180 degrees to where that child is happily living in my client’s home and they are the custodial parent again. It’s just been a miracle from where it started. It can seem like just a very tough situation and very dark and impossible to overcome, but I’ve seen it overcome many times. I just walk alongside my clients and help them just keep marching forward, doing the things that they need to do to improve themselves, to show that they can be good parents to their children.
How can a separated or divorced parent defend against allegations of child abuse or neglect by the other parent?
It depends on if they’ve actually contacted Family Services or if they’ve, let’s say, filed for a modification of custody based on these allegations. It’s based on evidence. If they’re saying, “This person is supposed to be clean and sober, but I heard them talk to me on the telephone a few times and they sounded like they are intoxicated,” you can find out. As an attorney, I always take the approach that I try to find out the truth. I think it’s extremely unproductive for my own client for me to be fighting against an allegation and trying to prove it’s not true if it is true, or just trying to avoid it or minimize it. I would rather, and this always works, take responsibility. If you’ve relapsed, get into inpatient treatment again, get back into outpatient and your AA meetings, or whatever. Tell the judge you made a mistake, you took responsibility for it, and you fixed it or are working on it. That works 100% of the time. Trying to avoid taking any responsibility for anything typically is going to backfire. This is not to mean that a parent is just saying stuff that’s not true. If it isn’t true, if I do my own investigation and I truly believe it’s not true, then we’re going to prove that it’s not true.
Does that come down to he said, she said?
It’s typically able to be proved if someone is back to using drugs or alcohol. They’re going to show signs of it in their life. If someone has abused a child, there are ways to figure that out. If they are neglecting the child, there’s people, there’s school, there’s friends. Somebody’s going to figure out how that child is being treated, or the child’s going to speak out about it – except for child sexual abuse, as that’s the one that’s really hard to know whether it happened or not.