Initial Strategy

• The first step, and initial consideration in any child custody case, is to determine exactly where you want to go, what you need to prove and then to develop a strategy that will accomplish the task. Nothing is done without proper strategy and planning.

• On any case I am involved in, prior to actually beginning to develop a strategy, I attempt to determine exactly what emotional state my client is in and identify anything that could possibly be used against them by the other side. That information will dictate some of the strategy and identify some of the necessary steps that may be required in order to properly defend the client. I want to know the amount of stress my client is under and how that stress could affect everything from psychological testing to their ability to testify properly. If there is a problem in that area, I will have them complete a neuropsychological evaluation simply as a means of avoiding future psychological testing problems that could produce a "non-valid" result, which obviously could have a negative impact on the client and their overall case. I never cease to be amazed at the attorneys who "subject" their client to psychological testing, many times with a cusody evaluator, with absolutely no preparation whatsoever and then are "shocked" when the results are, "invalid," because it appeared their client was attempting to "fake" the test and put themself in the "best possible light." As to issues that could be used against my client, let's say for example that the other side will offer testimony, attempting to prove that my client is an alcoholic. In that case, I will have my client complete a "substance abuse evaluation." Obviously, I am looking for a positive result for my client and, the expert who administered the test could either offer testimony on my client's behalf or act as a "collateral" witness, providing their results to a custody evaluator. This topic is covered more thoroughly later.

• Developing an overall strategy takes time, effort and careful planning. Normally, you win or lose a case well before walking into a courtroom, so a "plan" is not something that needs to be prepared by "shooting-from-the-hip," so to speak. In planning strategy, normally I attempt to accomplish the following, at a minimum:

  • Establishing The Father's Emotional State. Taking time to complete this properly could save valuable time later as my client undergoes testing, only to discover that a problem does exist that had a direct reflection on testing results and should have been identified prior to any testing being administered.

  • Issues Adverse to the Father. This is a vital step for several reasons; it assists in the preparation of a proper defense and it greatly assists the client with their own testimony.

  • The Father's Image. A father's "image" is something that can make or break his case and it needs to be developed well before trial or prior to any custody evaluation. It is absolutely vital to his ability to prove that he is a fit and proper parent to have his children and it serves to defeat some of the issues the other side will attempt to bring against him.

  • Necessity for Proper Documentation. Proper documentation consists of having "proof" of everything that is accomplished and consists of copies of all correspondence, receipts for certified letters, audio recordings of all conversations the father is a party to and possible video or audio taping of a father's "time" with his children.

  • Pre-Interview Considerations. Regardless of who a father talks with, social services, law enforcement or a guardian ad litem, there are a few basic rules he should follow.

  • Dealing with Social Services. While most attorneys will not allow their clients to talk with social services, especially alone, I find that, done properly, we gain a wealth of information and give nothing away.

  • Dealing with Law Enforcement. As with social services, most attorneys will not allow their clients to talk with the local police. Again, I find that, done properly, we gain a wealth of information and give nothing away.

  • Dealing with a Guardian Ad Litem. You must determine whether the GAL is biased and, if so, toward who, the father or the mother. There are some who believe allegations of abuse just because the mother or the child said so, and there are those who keep an open mind. Working with the "right" GAL can be extremely beneficial.

  • Retain a Local Psychologist to Assist with Experts. Most probably, I will not know any local area experts and I need guidance as to assure that correct defense experts are selected.

  • Preparing the Father for Testing. There is an art to successfully completing psychological testing and, although preparation does not supply "answers" to questions, it does deal with the proper "approach" to tests and interviews.

  • Consideration of Testing and Experts. This includes possible evaluations for the father, the mother and child or children. It may be necessary to conduct the latter through a court order and, it may be necessary to supply the court with candidate names, but assure that these potentials have been thoroughly checked first so you don't wind up with a "narrow minded" validator that could destroy the father's case.

  • Some Psychologists and Custody Evaluator Test Examples. There are multiple tests available to deal with psychological issues the father, the mother or the child or chidlren may be experiencing and, these tests should not be overlooked. Many custody cases are successful for the father because a good child psychologist was able to determine the "truth" from the child accuser. In addition, mothers who instigate allegations of abuse, through their child, needs to be examined thoroughly for psychological problems that could directly affect their overall fitness as a parent. Finally, in a custody case, many times the opposing side, or even the court, will request that the father complete a "sexual preference" test, to determine if they are a risk to their child. If the opposing side selects the "examiner," common sense dictates that the examiner is not being "paid" for a fair and impartial analysis, so many times, it is in the father's best interest to complete such a test prior to being exposed to a possible "quack" with an agenda.

  • Polygraph Testing. A carefully prepared polygraph, conducted by a competent and able examiner could assist in many ways, both civil and criminal.

  • Voice Stress Truth Verification. A machine used for detection of deception, or a lie detector, but unlike the polygraph, it monitors only the frequency modulations in the voice. This instrument is still used by law enforcement in several states, but normally considered to be "junk science."

  • The Custody Evaluator. If properly selected, this is the expert who can present an overall picture to the court, supporting custody for the father.

  • The Three-Prong Defense Outline. Identify each of the three-prong headings; prove that the father is a fit and proper parent to have his children, prove that the mother is an unfit parent and, prove that the abuse allegations are false. Under each of these headings, I carefully detail everything that would support each issue and, in doing so, I determine where we may be falling short and what needs to be accomplished.

  • Final Preparation. This includes preparing my client to testify properly and in laying out the best manner in which evidence should come in based on testimony of witnesses and experts. My client's testimony will carry a great deal of weight, good or bad, with the court so proper preparation is extremely vital to the case.

  • Pitfalls to Avoid. Issues and approaches that could easily destroy a father's chances of gaining custody of his children.

Immediate Concerns

• What current or past problems does my client have, what testing would, or should identify them and what treatment, if any, would resolve those problems or issues?

• Is the child accuser currently seeing a therapist and, if so, who recommended the therapist, is the treatment they are receiving productive, are the sessions being video taped, on how many occasions have they seen the therapist and what are the specific goals of the therapy?

• If the child accuser does have a therapist and it is determined that the therapist is biased and only serving to "validate" the allegations of abuse, through what means can they be prevented from seeing the child both now and in the future?

• Again, if the child accuser's therapist is biased and a "validator," consider having your attorney file a motion, asking the court to either discontinue sessions or replace the therapist with a non-biased professional. In that case, you would want to recommend three names of professionals to the court, but only after assuring that all three are non-biased professionals with no hidden agenda, who have dealt with child abuse allegations, both real and false and have knowledge of "parental alienation" and the effects it could have on a child.

• Regardless of whether or not the child accuser is seeing a therapist, I would strongly recommend that a motion be filed, asking the court to order therapy, or a thorough evaluation for the child. Again, you want to provide three names to the court, after you assure that all three have dealt with child abuse allegations, both real and false. Many times, a good child psychologist can actually establish such a good relationship with the child, that the child tells them the truth. There is case law specific to this. The following is a case where the defense was denied its right to an independent psychological examination of alleged child victim and a landmark in its recognition of children's suggestibilities, shoddy interview techniques and forensic pediatric examinations. See U.S. v. Rouse, U.S. Ct. Appeals, decided 11-12-96, 100 Fed. Rptr. 3d Series, pp. 560-586.

• If the mother appears to be behind the allegations, I would certainly want her thoroughly tested psychologically to determine what personality disorders she may have and, if any are noted, would they be serious enough to have her declared unfit. It is not uncommon for the allegations of child abuse to actually surface during a custody battle and, many times the mother either instigates them, or at the very least, uses them, even when she knows they are not true, to her own advantage. Any mother who would intentionally use her child as a means of destroying her husband with something as serious as an allegation of child sexual abuse, does have emotional problems. Without question, those problems should seriously and carefully be considered because she has absolutely no regard for the damage, both current and future, that she is exposing her child or children to.

• If there is any possibility that either the court, or the opposing side would require the father to undergo sexual preference testing, I want to assure that the father has already successfully completed a much more stringent testing than anyone else could possibly administer, for several reasons. I want my client familiar with the testing and I want to assure that if another examiner concludes that my client failed their test, that we have something to fall back on. This is also true in issues where a polygraph might be considered or recommended.

• If there is already a guardian ad litem involved, I want to determine exactly where they stand. The worst case I have ever seen was a guardian ad litem who stated to the social service's investigator that my client was an alcoholic, a liar, a sociopath and she was absolutely positive that he had sexually molested his son. Amazingly, that GAL had never met my client and, not once had she ever been to his house when he had his children to even observe their interaction. If that is the type GAL you find associated with the case, consider an immediate motion to have them replaced.

• I want to assure that a motion is filed, requiring that any and all adult contact specific to the case, be video taped, whether it be social services, law enforcement or a therapist. I am simply attempting to prevent the child being exposed to multiple interviews, contaminated by leading and suggestive questioning, by inexperienced examiners that would, most probable, result in additional allegations.

Preparation for the Father's Case

Establishing the Father's Emotional State

• This is by far one of the most important issues in a case and is seldom dealt with. It is impossible to believe that a father, who has been accused of child sexual abuse, is not under a great deal of stress and probably far more than he displays. That stress can lead to many other issues. It can be a source of panic, it can cloud judgment, it can easily affect testimony, it can affect the father's ability to communicate with others, such as social services and law enforcement and, in reality, it can actually cause a father to complete testing, psychological and other wise, with far less than the desired results. My concern is, how much stress is my client really under and how is that stress affecting him in the overall? If the stress is a problem, I look for a method of identifying it and then resolving it.

• I also want to identify any type of personality disorder that the father may have and find a method of dealing with it, so that it cannot be used against him later, as a means of keeping his children away from him.

Issues Adverse to the Father

• Depend on the fact that any father, attempting to gain the custody of his children, will be open to attack by his wife/ex-wife and that attack will be for the purposes of proving the father unfit. It is my desire to determine anything that can be used against my client and to prepare a defense accordingly. Much of this defense is in working with the father in preparation of his testimony. He must, without question, be able to properly respond to questions he will be asked in such a manner that does not put him in a bad light. Again, a possible attack by the wife/ex-wife would be an allegation that the father previously "smoked" maijuana, even to the point where she believed he was an addict. If I realize that allegation may surface, I want witnesses who can dispel the allegation and, more than likely, an expert who has tested the father and can say he has no signs of addiction of any kind.

The Father's Image

• A father's "image" is one of the most important issues to deal with. It can actually "provide" the court with a justification for "over coming" the normal "best interest of the child, especially a child of tender years, being served by being with the mother" reasoning. Some of the things a father needs to carefully consider are:

  • Parenting Classes. Although a father may not need these classes, it shows the court what the father is willing to go through for his children and, there is a very good possibility that the class "instructor" could provide fantastic testimony.

  • Normal Duties at Home. The following includes any age child, but is especially necessary if the child, or children are of tender ages. The father must be well prepared to prove that he is fully capable of properly caring for his children in all aspects, including proper meal preparation, dressing and bathing them, getting them to school and to their activities, spending quality family time with them, assisting them with their home work and, in short, handling whatever situation may arise. One issue a father will face is, "Who will care for the children while you are at work?" A father must be able to address and respond to each of these issues in his testimony and to have "collateral" witnesses available who can support his ability to be a proper father.

  • Participate in School Events. Know the child's teachers and know how the child is functioning in school. Know if there are any problems and let the teachers know that you are there to work with them. Attend PTA meetings and support, assist or at the very least, attend any and all school activities.

  • Church and Sunday School. If you, or you and your child, were not attending church or Sunday school when the custody issues began, "DO NOT" jump up and start attending. Although many attorneys will advise you to, it could easily look like you are doing it only for appearance sake and some judges quickly take offense to "hypocritically using religion" to reach an end. If your child is already in church and Sunday school, as with school, know their teachers and let them know you are there to assist in any way possible. Assure that either you assist with, or at the very least, attend any and all of your child's church activities.

  • Activities. Get involved in activities with your child where you meet other parents who have children the same age as yours. Let them see your relationship with your child. This includes possible soccer for boys and girls, baseball, football for boys and dance for girls. Get the children involved.

  • Discussions. Do not ever discuss anything with your child or children that is negative about their mother. The child gets enough of that from the mother and the last thing you want to be guilty of is doing the same thing that she is doing. Make your time spent with your child a happy time and something that they will remember.

  • Communication with the wife/ex-wife. Believe it or not, many times a judge will award custody to the parent they believe will be more apt to assure that a good relationship is established between the child or children and the other parent. Toward that end, and this approach goes along with never "trashing" the wife/ex-wife, I usually recommend that some means of communication be established and that the father write a letter accordingly. A perfect example of a father's letter would be:

    • I believe that, regardless of what is going on, it is in our best interest to communicate for the sake and welfare of our children.

    • I would agree to purchase and install a fax machine and a telephone line director for you if you are agreeable.

    • You would still use your current telephone line normally, but when you you get a fax, the call would be directed to the fax machine. It would not interrupt you normal telephone calls.

    • In this way, we could communicate without having to do it verbally when issues arise about the children.

    • If this is agreeable, please let me know by mail.

  • This accomplishes many things, but for one, it certainly lets the judge know that you are attempting to establish a positive communication for the sake of your children and that your main interest is in your chidlren's welfare. It also provides you with a record of fax data should it be set up and, if rejected, it shows you in a positive light and, for refusing, the wife/ex-wife in a not so positive light.

Necessity for Proper Documentation

• I would strongly recommend that you audio record any and all contacts specific to your case. First, determine if you are in a one-party or two-party recording state. Most states are one-party states, but there are a few, like California, Maryland and Illinois, that are two party states. A one-party state simply means that you are not in violation of any law when you secretly record a conversation to which "you" are a party to. It does not mean that you have the right to record "other" person's conversations to which you are not a party. That is invasion of privacy and carries stiff criminal and civil liability. As an example, if you are having a conversation with another party and a therapist and you record that conversation, you are not in violation of any law because "you" are a "party" to the conversation. If, however, you have a recorder, hidden in a briefcase or bag, and you leave the room, allowing the conversation between the therapist and the other individual to be recorded, you are guilty of invasion of privacy because "you" are "not" a party to the conversation. Once you determine that you are in a one-party state and are not in violation of any law, record everything to which "you" are a party, telephone or other wise and, that means any and all conversations specific to your case with the wife, ex-wife, social worker, therapist, law enforcement, etc.

• Use one tape for one conversation. Many people attempt to put as many conversations as possible onto a tape. Very unwise. If the tape ever has to be used as evidence, the other side is entitled to the entire tape and you do not want other conversations made available to them, so only have one conversation per tape.

• When you have a tape completed, it is a good idea to "break" the small "flange" on the side of the tape so it cannot be recorded over. Take that tape and put it in a sealed envelope. Write a short description on the envelope, such as the date of the recording, the parties involved and a very short synopsis of the conversation. In the end, you may have many tapes and it is vital to be able to retrieve the one you may need without having to "listen" to the tapes to find the one you want.

• Once the envelope is sealed, "lock" it away somewhere so that it would not be possible for anyone else to access it. The tape must "maintain" a proper "chain" of evidence to be acceptable. You recorded the tape, you removed it from the recorder, you sealed the tape in a envelope, you locked it away and you brought it to court. In all that time, you have had absolute possession of the tape and it was not possible for any third party to access it or alter it in any manner. Unless that is strictly followed, you run the risk of the other side being successful in keeping the tape out completely.

• Again, assure that there is no recording of "any" parties involved in a conversation that "you" are not a party to, otherwise, you open the door quickly to civil and criminal liability for yourself. Also, keep in mind that video recorders are held in the same light. You may be able to "video" other parties, without their knowledge, but "not" audio. The issue is, "the expectation of privacy." You cannot invade that or again, "you" could be subjected to civil and criminal liability.

• A recording amounts to nothing more than establishing a true record of exactly what was said. If the person you are talking with says the same thing months later that they said when the recording was made, the tape served no purpose, however, if what they later said was not consistent with what they said at the time you recorded them, the tape serves as rebuttal.

• A perfect example of an excellent use of a video camera, especially in a custody case where an allegation of abuse has surfaced, would be in showing your interaction with your children. When allegations of abuse surface and grow, one thing that you can depend on is that the other side will claim that your child is "afraid" of you. A well planned video of your activities with your children could easily prevent, or defend against that.

• Never, under any circumstance, let anyone know that you are video or audio recording. Many people think it is to their advantage to "let" other parties know what they are doing in an effort to "keep" them straight. That does not work. Basically, you get nothing when the other party is aware. They will refuse to say things they may well say if they are unaware of the recorder and, in the end, you wind up with far less than if it had been done properly. I have seen so many fathers, involved in these cases, "thrill' themselves by "letting" their wife/ex-wife "know" that they are video taping something. Evidently, it makes the father feel like he is in control, but it accomplishes nothing and should not be done. Build the case silently and in secret.

• When audio recording, Radio Shack has a "handset" recording device for $14.95, that provides excellent quality. In addition, they normally have a "suction cup" recording device that has been known to work very effectively on cellular telephones.

• If you are recording audio conversations with anyone, in person and not on the telephone, make sure that you thoroughly test your equipment first. In some cases, when a tape reaches the end, the recorder will give off a loud tone sound, which could result in extreme embarrassment. In addition, test the recorder for it's ability to pick up conversations properly. I have seen "excellent" interviews conducted where the recorder was in a pocket in such a manner that it either did not pick up the parties or, the sound of the microphone brushing against material was the only thing that was heard. Simply put, test before you attempt. I have actually had some clients who taped a recorder to their leg and ran a power microphone up, through their clothes and down their shirt sleeve. The quality was perfect.

• In addition to recording, assure that you make an accurate and complete copy of any and all correspondence that you send to anyone involving your case and, when mailing items, it is always best to send them certified so you have a "signed" return for your certified mail and then there is no confusion as to what other parties claim they did or did not receive.

• Print and keep any and all email you send and receive specific to your case.

Pre-Interview Considerations

• A father, attempting to gain custody and, who has been accused of child sexual abuse, will most probably have many conversations with a number of people involved in the case including social services, law enforcement, a guardian ad litem and therapists or counselors. It has been my experience that most fathers will go into these interviews doing everything they can to make their case and to totally destroy their wife or ex-wife. That is human nature, but it is not always the right thing to do. The fact is, some of these people may already have their mind made up that the father is guilty of abuse and, without question, many of these people will be the enemy, but regardless, there are two rules a father should always adhere to. The first, as I have already said, is to audio record the interview without letting the person you are talking with know that you are doing it. That is more important in these interviews than anything else because it is the "only" proof a father will have if the interviewer later says the father "confessed" guilt. I had one case where a father told a detective, after he was advised of the charges of child abuse being made against him, that, "If he had that kind of problem, he needed help." The father was referring to legal assistance. The detective wrote a report in which he stated the father said he needed "psychological" help, a statement that clearly pointed to the father's guilt.

• Aside from assuring that the interview is properly recorded, the second rule is, no matter what is felt, treat the interviewer with the utmost respect and never, under any circumstances, trash the wife or ex-wife. You need to remember that you are on tape as well and you do not want anything you say held against you in any manner. If the interviewer attempts to "push" you into making derogatory statements, simply respond, "I think enough negative things are being said without me adding to it and I am not going to be guilty of the same thing other people are doing." "It serves no purpose and does not help anyone reach the real truth." Believe it or not, that approach "shocks" many interviewers and, on occasion, can cause them to respect you and look at the case differently. I have actually seen some interviewers change their mind and sides based on that approach. Keep in mind that if a wife or ex-wife is a nut case, that will come out without you having to enlighten everyone and those issues are best brought out by the experts rather than you, the father.

Dealing with Social Services

• If social services wants to interview a father, most attorneys are quick to say, "Absolutely not." It is not my intention to undermine the strategy of any attorney and, the following is by no means the best advise for everyone, but in many of my cases, I have recommended that my client accept the interview, alone, without their attorney present. In many of those cases, we have been able to stop an indictment simply because of the interview. Again, that advice is not in everyone's best interest. With me, it depends on my client's intelligence and their ability to really comprehend what is going on. If a social service investigator already has made up their mind that the abuse took place, they will attempt to use the interview as a possible means of "trapping" the father, by getting him to say something that could be used against him later. There is an art to surviving these interviews and I do not even consider this unless I establish the following criteria:

• That the state the interview is being conducted in is a one-party recording state and I can assure that my client has a tape hidden on their person, that the recorder is picking up properly and that it has been carefully tested prior to the interview.

• That my client fully understands the psychology behind most of these interviews. Normally, the catch-all question will be, "Why would the child say it, if it was not true?" You must absolutely understand that there is no answer to that question. They realize that and are asking it simply to get the father to talk in hopes of having him say something damaging. The "only" response to that question is, "I don't know." "I wish I did, but anything I would say would be speculation and that is something I cannot do." Surprisingly, that response catches many DHS investigators completely off-guard and sometimes frustrates them to the point where the balance of the interview consists of questions they ask, which actually gives away "their" intentions.

• That, as previously stated, my client fully understands that, under no circumstances are they to "trash" their wife or ex-wife during the interview. If issues arise during the interview where it appears the interviewer is attempting to have you make derogatory remarks, simply say, "There is enough of that already taking place and I refuse to stoop to that level." In addition, regardless of their motives or actions of the interviewer, they are to be treated with the utmost respect. Again, I repeat, you are on tape as well and you do not want even the slightest indication that you are being abusive or abrasive to them in any manner. Simply put, you want to "establish" that above all, you were totally cooperative

• The idea behind subjecting yourself to these interviews is to "gain" information and not give it. Surprisingly, that works. Social workers have a history of talking with and, on occasion, bullying people. They are usually not prepared at all for someone who "politely" tells them it is impossible to provide answers to specific questions. That has been known to frustrate many of them because it is not something they are used to. It is difficult for them to get agitated with the person they are talking with when they are so polite and cooperative, yet they do and, many times, it clearly comes out on tape. On many occasions, social workers have been known to say things on tape that has left them in an extremely awkward and difficult position, sometimes even to the point where a case is dropped simply because of what was said, such as an unnecessary or uncalled for threat.

• In a prior case we handled in Texas, our client was being accused of molesting his step-daughter. He telephoned me and advised that social services had contacted him and said they wanted to interview him and his wife. He said his attorney said, "Not no, but hell no, do not go near those people." I told him he needed to decide who he was going to listen to because, if it was me, I was going to ask him to submit to the interview. He agreed and we discussed, at length, what he would be asked and the proper manner in which he should respond. Both he and his wife wore recorders to the interview. Immediately following the interview, the client telephoned me, laughing. He said he had been asked every question we had discussed and that the DSS investigator got visibly frustrated. When I listened to the tape and had it transcribed, I was amazed at what had been said. With that tape, and a few others from telephone conversations, as ammunition, my client was able to get a "not founded" decision on the case and it was over. Had he not submitted to that interview, there is not one doubt in my mind that he would have been indicted. I have all the confidence that a jury would have found him not guilty, but we avoided the very costly criminal trial. Again, I do not recommend this to everyone and it is not something that should be attempted without a perfect and proper set up. The advice the attorney had given about "not" talking to social services is absolutely right in most cases, but not all.

• If social services recommends a therapist for your child, prior to agreeing, you need to determine if that therapist serves the best interest of the child or if the therapist is simply a "validator" they are using in an attempt to build a case against you. An example of questions you would want answered before agreeing to any interview by a therapist of their choosing would be:

  • How many cases are actually referred to the therapist by social services?

  • How many cases have been referred to the therapist by social services that then became criminal?

  • How many times has the therapist personally testified for the State in a criminal case where an allegation of child sexual abuse has surfaced?

  • How many alleged "child abuse" cases has the therapist actually handled?

  • Of all the child abuse cases that the therapist has handled, how many allegations of abuse have they personally validated?

  • How many times has the therapist testified for the defense in a child abuse allegation case?

• In addition, I would strongly recommend that the father send a letter to "whoever" has made the therapist recommendation with a minimum of the following:

  • It is my understanding that you either have recommended or intend to recommend, that my child undergo some type of counseling with a therapist of your choosing. I have no objection, whatsoever, to my child talking with a professional, however, I do object to my child beginning any therapy with any therapist you recommend until you first provide me with full and complete resumes and CVs for each therapist. It is not my desire to have my child victimized by any mental health professional with a hidden agenda and I want time to evaluate each therapist you may recommend prior to exposing my child to something that could prove harmful to them. I am simply trying to choose the best therapist possible for my child and not one who simply "validates" abuse.

  • I am requesting that no therapy take place until I have the opportunity to determine the therapist's background, history with alleged abuse cases and their potential for bias.

  • I would like the statement or documentation percentage of each therapist's income and number of referrals that are based on referrals from DSS and any of its agents or staffs.

  • Please state any and all relationships, whether financial, familial, social, or business which each therapist has with other mental health professionals who have been involved in this case or any attorney, judge or DSS.

  • Also, please advise me, in complete detail, what the goals of therapy will be and what the therapist will discuss with my child. If any discussions will be of an abusive nature, in any manner, I want an absolute assurance that all sessions be video, or at the very least, audio taped. I also need to know if the sessions are to be video taped whether the video camera will be positioned in such a way to show both the therapist and my child.

  • I do not want my child exposed to any incompetent, half-trained people with a hidden agenda. I don't want any therapy to take place until I can be assured that it will be untainted by my wife/ex-wife, her family, DSS, or any other individuals involved in my case.

  • I believe that therapy will be a waste of time as long as my wife/ex-wife continues to contaminate and manipulate our children into saying things that are not true. I am concerned that she will sabotage any true therapy or counseling interventions to further her own agenda and her own aims. I want to be assured that a truly neutral, objective, and untainted therapist or counselor is involved in this case.

Dealing with Law Enforcement

• Determine first if the interview is for the purpose of finding the truth, or for an attempt to hopefully obtain a "confession" from the father. It serves no purpose to even agree to an interview where the detective already has their mind made up and are only looking for a confession. You will not change their mind simply because they will not pay any attention to anything you say that does not support "their" case. In any case, if an interview is conducted, assure that "they" record it and assure that you record it as well, assuming you are in a one-party recording state. If you are in a two-party state, they have to record the interview because that will be the "only" recording and that will be your "only" defense later, if they attempt to imply that you said something that you did not.

• Rarely, you will find a detective who is a professional, has been doing his work for a number of years, has dealt with false allegation cases and who knows that an allegation of abuse is not a fact just because a child said it was. These can end up being a father's best ally, so work with them and, above all, treat them with the greatest respect.

Dealing with a Guardian Ad Litem

• The first question to be resolved is, where does the guardian ad litem, (GAL), stand? In many cases, a GAL is an attorney and in others, not, but the GAL is the court appointed "expert" who is supposed to watch out for the best interest of the child or children involved. A GAL can offer testimony on their own and, in some cases, the court will call them to testify. If the GAL is an attorney, they can ask questions during trial. Unfortunately, there are those GAL's that are "validators" and who immediately believe the children when they say they were molested. Obviously, they are biased against a father from the start and, if possible, should be replaced. Then there are those who are professional and are seeking the truth. They keep an open mind and can be very beneficial to a father based on what they have seen and what they have learned. As with any other contact in the case, assure that you record all communications, either by telephone or in person. In a prior case, I actually had a client tell me that it was not necessary because the GAL was "solidly" on his side. What a shock it was when the GAL issued a report stating that it was her opinion the father had molested his child and that she felt any contact the father had with the child should be supervised. In that case, the father had a "wealth" of information at his disposal to "rebutt" the GAL's findings, but since he recorded nothing, it was her word against his and he ended up with nothing.

Retain a Local Psychologist to Assist with Experts

• Experts usually play a vital role in custody cases. They can assist greatly in establishing each of the three steps that a father must compete; proving the allegations false, proving the father is a fit parent and proving the mother is unfit. Unfortunately, many local attorneys are not familiar with and, in some cases, are actually afraid to use experts because of "their" fear of losing control of the case. Finding the "proper" expert is the real key and that takes effort. It is highly recommended that a local psychologist be retained to assist with this effort.

• Again and again I have stated that you want to assure that any expert you use, for the most part, has prior experience in dealing with allegations of abuse, both real and false and that they have some experience with parental alienation and the overall effect that has on a child. That is the one area you must make absolutely sure that the psychologist assisting you keeps in mind as they begin to identify others that could assist you.

• You do not obtain experts through the "yellow pages." You conduct whatever investigation is necessary to determine exactly where an expert normally stands and you do this by researching material that they have written or published, their resumes and/or CV's, determining their prior courtroom experience and their credentials for acceptablity by the court as an expert. My recommendation, again, would be to retain a local psychologist and use them to assist you in locating additional experts. Simply put, do not refer any "expert" or retain any "expert" to assist you until you know where they normally stand on issues. As a perfect example, say social services recommends a therapist to interview and/or evaluate you or your child in your case, where allegations of sexual abuse have surfaced. If social services believes the allegations are true, it is impossible to imagine them referring you to a "neutral" or "unbiased" expert because, in many cases, they are attempting to build a case against you and, it will be their desire to use individuals who support their "pre-determined" effort. A little effort investigating backgrounds can actually make or break a father's case.

• There are "experts" out there that are nothing more than a "gun for hire." Frequently, these are seen working for DSS, a wife/ex-wife or the State, if the issue becomes criminal. In most cases, these "experts" are nothing more than validators who could care less about the truth. You also have "experts" who "believe the child" at all cost. A proper expert, the one you need, has impeccable credentials, is not biased, has credibility with the court and deals properly with the issues at hand. They have the necessary experience in sorting out issues to determine where the problem really is and that is vital, especially where you have a mother who is either making or simply enhancing false allegations of sexual abuse against you, through your child.

• Credibility is a must and each expert must be prepared to undergo a "DAUBERT" challenge in order to have their findings and opinions accepted by the court. No matter how good an expert may appear to be, or no matter how good what they have for you is, unless it can be admitted as evidence, it was all a waste of time and effort.

• As previously stated, experts can be psychologists and medical doctors. They can function well as experts for your side and they can function well in assessing and combating experts used by the opposing side. Once again, without question, you want experts who have knowledge and have worked child abuse cases, both real and false allegations and has knowledge of parental alienation and how both of these issues can affect a child, both now and in the future.

Preparing the Father for Testing

• Most psychological testing consists of "self-reporting" tests that ask questions and provide you with several possible answers. An example would be the MMPI 2, a test that consists of about 576 questions. As with any test of this nature, there is an art to completing them properly and many people fail simply because they do not understand how to respond to questions honestly and properly. As a perfect example, let's say a question is, "You are at a party, in a crowded room," "You feel most comfortable: (A) Being the center of attention, (B) Talking to a few people, (C) Standing in a corner, alone, or (D), So uncomfortable you leave." Let's say the honest answer is (D), "So uncomfortable you leave." Now, remember, most psychological testing is "self-reporting." That means "you" have the opportunity to show what "you" are. The problem is, most people will want to show themselves in the best possible light, so, with the above question, if their honest answer was (D), they think, "Well, I don't want to say that because they will think something is wrong with me and, since I am providing the answers, I'll put myself in the best possible light." "Since I don't want to say (D), although it is really the way I feel, and I sure don't want to say (A) and make them think I am someone who runs everything, the safe response is, (B), Talking to a few people." "That response would make them believe that I am normal." The problem is, these tests ask basically the same question over and over, but worded slightly differently and, "if" you are trying to "fake" the test and put yourself in the "best light," you will probably get caught and the final result will be, "Invalid results, unable to offer an opinion." The test was invalid because they "intentionally" attempted to "put themselves in the best light" and, therefore, were faking their responses. That is "not" something that you need an expert testifying to so, simply put, when questions are answered, answer truthfully, regardless of whether or "not" you believe your "response" will put you in a favorable light. Normally, the first answer is usually the best. The more time you take, mulling over what you "think" your response should be, the more prone you are to getting an "invalid" result.

Consideration of Testing and Experts

• Reading Comprehension Test. Any test, such as a WIAT, or similar test that would pick up reading comprehension and/or writing skills. I recommend this when someone may have difficulty completing written psychological testing properly.

• Neuropsychological Testing. This is a much more comprehensive test than the WIAT and could prove invaluable to someone who is having a difficult time completing other psychological testing properly. It determines if the person being tested has problems or issues that could, or would affect their completing interviews and/or written tests properly, in order to provide a "valid" evaluation. Many times, what is not considered is the stress an individual would, most probably, be under and how that stress level could easily lead to other problems, such as even simple comprehension. The success in overall psychological testing is to provide a "valid" result, or it was all a wasted effort.

• Psychological Evaluation of the Mother. This should be completed by a board certified forensic psychologist who specializes in child custody cases and is familiar with cases involving child abuse, both real and false allegations and who has a knowledge of parental alienation issues. This can be an excellent tool if used properly, especially where it appears that the mother is directly responsible for false allegations. It can easily identify personality disorders, some of which could be severe enough to establish unfitness on the part of the mother. Obviously, in a custody case, it is not likely that a mother would subject herself to such testing with a court order, so a motion for that order needs to be carefully considered.

• Psychological Evaluation for the Father and Mother. In this case, the evaluator tests both you and your children's mother. Again, this should be completed by a board certified forensic psychologist who specializes in child custody cases and is familiar with cases involving child abuse, both real and false allegations and who has a knowledge of parental alienation issues. This is thorough testing and nearly as comprehensive as a full custody evaluation. It can provide an overall view of the entire family, identify problems and issues and, in many cases, determine if there is really any credibility to the abuse allegations and, if not, who is behind them.

• Custody Evaluation. This is a very thorough evaluation, when done correctly, and deals with everyone in the family, including the child. Well prior to having this done, you must assure that the evaluator is proper or the results could be disastrous. Most especially with this evaluation, you want a board certified forensic psychologist who specializes in child custody cases and is familiar with cases involving child abuse, both real and false allegations and who has a knowledge of parental alienation issues. The custody evaluator can be the best solution to the overall problem because they will complete a thorough investigation, including interviews and psychological testing that presents a clear picture of what is actually taking place. If court ordered, their report is normally accepted as is, without challenge and becomes a part of the record. In simple terms, let's say that prior to the custody evaluation, a father has submitted to a sexual preference evaluation along with other psychological testing as well, all favorable to the father. The names of these experts are supplied to the custody evaluator who, in turn, talks with those experts and includes their reports in the overall custody evaluation. You have one vehicle that is being used to get many other "opinions" into evidence and, the final product can greatly assist the court in their decision. One caution though. I had a case where the parties agreed to a custody evaluator. The evaluator was actually chosen at the request of the mother, a therapist herself. The father did not know any better so he simply went along. Needless to say, the evaluation "destroyed" the father, but the saving grace was, the judge commented to both attorneys; "Do you know how to discredit Dr. Evaluator in my courtroom?" "When he takes the stand and is asked to state his name for the record, and he does, he is discredited." A perfect example of a "quack" that, thankfully, the court had a prior experience with.

• Home Study Evaluation. More often than not, in a custody case where allegations of sexual abuse have risen against the father, the mother claims that the child is "afraid" to be around the father. A proper home study can properly identify exactly what takes place in the home and it is an excellent tool when used to show the real relationship that a father has with his child. It also goes a long way in allowing the court to understand the environment the child will be in if custody is awarded to the father.

• Sexual Preference Evaluation. This can be very beneficial, especially in a civil case, for many reasons. There are basically two types of testing used in the treatment and the identification of a possible sex offender; the Abel Screen and the penile plethysmograph. Prior to developing the Abel Screen, Dr. Abel personally used the plethysmograph, but realizing that in many cases it could be very degrading for the person being tested, he developed the Abel Screen to accomplish the same results as the plethysmograph, but without the embarrassment. In my cases, I use the Abel Screen; one because of the qualifications of Dr. Abel personally and two, for the fact that, as previously stated, the plethysmograph testing can easily be degrading to many. The penile phethysmograph measures penile circumference in millimeters caused by a partial or total erection. It is, therefore, a good, direct measure of physiological arousal because erection rarely occurs except to sexual stimulation. The Abel Screen, on the other hand, is a reaction time measure, an indirect measure based on the belief that sexual arousal interferes with cognitive processing as measured by reaction time. These are two totally different methods of measuring a sexual preference, such as pedophilia. Reaction time is difficult to fake. Both the Abel Screen and the plethysmograph are very good tools and, in reality, each does pass all the requirements for scientific measure. The catch is that there are a few people who molest children who are not sexually aroused by children, such as psychopaths, alcoholics and child porn persons who are in it for the money, but they can usually be detected with psychological tests. Although not perfect, the accuracy of both of these devices are probably the best of any psychological tools. There are procedures used during the evaluation that include a review of records and/or documents from any agency, investigative reports, reports of prior treatments, psychiatric evaluation, psychological testing, the Abel Assessment for Sexual Interest, a polygraph, a drug screen and diagnosis. The Abel Assessment for Sexual Interest, an objective method for evaluating deviant sexual interest, was developed by Gene G. Abel, M.D., a veteran with over 25 years experience and research in the area of sexual aggression. This technology uses non-evasive means to achieve objective measures of sexual interest. There are no nude slides and no embarrassing physiologic response measures. Caucasian and African-American slides are used. Dr. Abel is a Board Certified Psychiatrist and Medical Director. He is a distinguished psychiatrist with a national and international reputation for diagnosing and treating problems of sexual misconduct and sexual aggression. He is considered by many of his colleagues to be the leading psychophysiology researcher in studies of sexual behavior in the United States. Dr. Abel has directed six (6) National Institute of Mental Health Research Projects dealing with sexual deviancy problems. He has published over 100 medical articles in scientific journals. The entire examination normally lasts for two days. As previously stated, I use Dr. Abel personally for many reasons, but the main one is, if testimony is required, it would be impossible to imagine anyone having the ability to destroy him or his credibility. In addition, many times, especially in a civil case, where custody is an issue, I "look" for and "expect" the opposing side to file a motion, requiring that the father "submit" to "sexual predator" testing. I have seen cases where the opposing side has retained their own psychologist or psychiatrist to complete the evaluation and, in some cases, where that expert, who was paid a great deal of money, then provided an "expert" opinion that, based on his testing, the father was a liar and a child molester. Stop and think. The opposing side did not pay their "expert" the amount of money they did to find nothing. If that happens, the father needs something "solid" in his back pocket, to defend against the opposing side's "expert" quack. I have seen Dr. Abel and his testing totally destroy experts who provide "phony" reports and evaluations for the opposing side.

  • Although many attorneys are quick to tell a client this testing is not necessary, they fail to realize that, during a custody battle, the opposing side can easily file a motion to have the father evaluated as a possible sex offender and a threat to the child. Very rarely will a judge deny that motion and a father can find himself facing an evaluator, retained by his wife/ex-wife, whose sole motive is to "prove" that the father is a child molester. In my cases, I have faced that and beaten it every time by having my client complete a much more aggressive test than the opposing side could think about. In short, my goal is to do whatever is necessary to protect my client.

• Drug or Alcohol Dependency Evaluation. While this may not be an issue in every case, it can surface as false allegations of abuse continue. The components of an alcohol and or drug evaluation would normally include a clinical interview, general and alcohol/drug-specific questionnaires and inventories, and a review of relevant medical, psychological, social service, DMV, and deposition or testimony transcripts, and other records. Normally, the counselor would request a hair analysis drug test if there is a possibility of other drug use. They would also interview, probably by telephone, approximately three individuals who are familiar with the past and future drinking habits of the person being tested and they may also consider neuropsychological screening tests. The tests normally last a full day and a rough estimate would be two hours of interview and four hours of completing questionnaires and tests.

• Full Medical Evaluation of the Child. On any case where a child is alleging any type of penetration by a father, I would strongly recommend an independant medical examination be conducted as soon as possible in order to safeguard the father. I have seen many medical examinations conducted by the opposing side, or the state in which "findings" support abuse, but those findings were not accurate. I have also seen cases where examinations state, "No medical findings, but the examination is consistent with abuse." That is a play on words. The fact is, in most cases of alleged abuse, there is no supporting medical evidence, so when they say "consistent with," what they really mean is, it normally does not exist anyway. The issue is simple. "Isn't it also consistent with non-abuse as well?" Where a medical report alleges physical evidence, you most certainly will require a defense expert to rebutt it, especially where colposcopic photographs exist.

• Psychological Evaluation of the Child. Any child who alleges abuse, needs to be "properly" examined and properly does not mean by a biased therapist with an agenda who believes the allegations just because the child said it happened. As previously stated, I would locate an "unbiased" professional, who works with children and has the ability to properly communicate with the child. If the child is currently seeing a "validator," as previously stated, I would file a motion, asking that there be no further contact between the child and the current therapist. In addition, I would request that any and all sessions with the child be video taped, regardless of who does the therapy. That will not present a problem to a professional, who has nothing to hide.

• Interview Protocol Experts. On any false allegation of child sexual abuse case that gets out-of-hand and becomes a criminal issue, depend on the fact that the child will, most probably, have undergone multiple interviews and, in many cases, those interviews are filled with leading and suggestive questioning. When you are fortunate enough to have audio or video tapes of those interviews, it is very beneficial to have an expert view them, especially for protocol. One of the best books available today is titled "Jeopardy in the Courtroom," by Ceci and Bruck and published by the American Psychological Association. It is the "authority," based on current research, of a child's testimony and memory and deals with the issues of multiple interviews and leading and suggestive questioning. The problem with those issues is that, many times, it is not possible to determine if a child is giving an account of events that really happened or, if their allegations are based on what they learned during the interview process. A proper expert will be well aware of the current literature and studies as they apply to interview techniques. As a perfect example of the importance of this issue, I was retained by the family of a man who was scheduled for a criminal trial a week after I got involved. In reviewing all prior interviews, I learned that the allegations surfaced at a "sleep-over." The child accuser told other children, "Pawpaw touched me down there." One of the older girls responded, "You mean under your clothes?" to which the accuser said yes. She was then asked, "You mean under your underwear?" to which the accuser said, yes. Now, in both cases, the accuser only "agreed" with what was said, she did not personally make the allegation and there was plenty of documentation to support that, but it got worse. The accused was being charged with "penetration." Amazingly, as I viewed the interview tapes, I discovered that the child accuser "never" said she was penetrated, she simply "agreed" that it happened when it was brought up by her interviewer. Thankfully, the attorney who represented the accused was replaced, a "taint" hearing was granted that delayed the trial and a proper defense was prepared.

• Medical Expert - Consistent with Abuse. If, by some chance, this matter does become a criminal issue, it is not uncommon for the State to put on a medical witness who may testify that "the exam was normal, but consistent with abuse." That quickly misleads a jury. The fact is, in about 98 % of child abuse cases, there is no medical supporting evidence so, in that light, a lack of finding is "consistent" with abuse, or what they normally see. You need someone capable of explaining that to a jury.

• Medical Expert - What is Normal with the Vagina and Rectum. You may also require a medical expert who has the ability to testify as to what is normal and abnormal in a vaginal or rectal examination, depending of the State's findings. I have seen the State, in some cases, have a medical expert testify that a certain "mark" seen in the vaginal area, was consistent with sexual abuse and or penetration when that was not the case at all. The worst case I have ever seen was a State appointed medical doctor who conducted an examination of a child accuser who was alleging penile penetration by an adult male, repeatedly. The problem was, that child, even by the State's own expert's admission, had an "intact" hymen. When asked to explain that, the State's expert told the jury that her exam was exactly what she would expect to find with a child who gave the history she had received and that a hymen can "regrow or repair itself." That testimony was absolutely absurd, but it was unexpected and the defense attorney was unable to combat it. The more questions he asked, the deeper the doctor was able to dig in, making her case. The inability to handle the problem properly was simply a lack of preparation.

• Expert to Rebutt State's Experts. Determine who the State's experts, or your wife/ex-wife's experts will be, what testimony they will provide and then have a defense expert ready for rebuttal.

• Expert to Rebutt Department of Social Services Investigation. It is always good to have someone who can define and rebutt a DSS investigation as to findings and protocol.

• Parental Alienation Expert. Dr. Richard Gardner coined the phrase, "Parental Alienation Syndrome," based on his research. Unfortunately, it has not been tested in the overall scientific community and, therefore, is not readily accepted as a "syndrome," however, it is a well known fact that parents do "alienate" their children against the other parent and, most especially in a false allegation of sexual abuse case. Many wives/ex-wives are so filled with hate that they are willing to go to any length to destroy their husbands/ex-husbands, regardless of who gets hurt, and that is usually their child or children. This is clearly seen in the S.A.I.D. Syndrome, a syndrome that is accepted by the scientific community and stands for, "Sexual Allegations in Divorce." In most of these cases, a mother will bring charges against the father for sexually molesting their children and, in some cases, the mother becomes so obsessed with reaching her goal that she literally destroys her own child or children. Simply put, this is a "sickness" and, any mother, seeking to destroy the father by using her child, should be considered unfit and should not be allowed to even be around her children without supervision. A perfect example of a PAS, Parental Alienation Syndrome, case is Berg v. Perlow, Case No. CD 98-1285-FC, 15th Judicial Circuit, Palm Beach County Florida on March 15, 2000. In specifically recognizing Parental Alienation Syndrome:

  • "The wife seeks sole parental responsibility and to eliminate any contact between husband and child based upon the Parental Alienation Syndrome."

  • Husband diagnosed as psychopath, with copious quotes from DSM-IV.

  • Father diagnosed as psychopath and child diagnosed with moderate to severe PAS by mental health professionals including Ellinger, Heller, Gardner and Bush.

  • Court order includes such items as, "The husband shall have absolutely no contact with the parties' child (now 8) until the child reaches age 14." "No contact with the child forthwith shall include but not be limited to (the court will specifically reserve jurisdiction as to this issue as the husband will probably find a way to somehow circumvent this order, so that the court will enter additional orders on behalf of the wife so as to require strict compliance with this order) the following: No telephone contact, no e-mail contact, no computer contact, no videos, no visitation, no visits at school, no records from school, no records from any health care providers and no contact indirectly by third parties on behalf of the husband, whether they are relatives or not.

  • Other quotes include, "The court finds that the order of the court in which the wife should not disparage the husband to the child is now becoming a detriment to the child." "The wife needs to be as truthful to the child as possible taking into consideration the child's youth, but that the wife should advise this child of this court's specific findings and why this court has done what it has done, including but not limited to the husband's extensive background involving his deceitfulness, his lack of remorse, his arrests, his poor behavior control and impulsivity, his lack or empathy, and his total anti-social personality disorder".

Some Psychologists and Custody Evaluator Test Examples

• While there are literally hundreds of psychological personality and behavorial tests available, the following represents the most common used in custody cases. Normally, when given, many of these tests are combined in order to have a more thorough evaluation.

  • Minnesota Multiphasic Personality Inventory-2 (MMPI-2) - The MMPI-2 is a 567-item, true/false questionnaire to evaluate the patient's personality characteristics. It compares the patient's answers with those individuals previously evaluated and diagnosed, to determine if the patient's pattern of responding matches the diagnostic characteristics of previously diagnosed groups. It has scores related to validity, affect, personality, interpersonal characteristics, cognitive functioning and diagnostic consideration.

  • Millon Test - The Millon Inventories, MCMI-II, is a 175-item, self-reporting test that assesses 13 personality disorders (DMS-III-R Axis II disorders) and 9 clinical syndromes (DSM-III-R Axis I disorders) in adults and is among the most frequently used diagnostic tools for assessing personality disorders and clinical syndromes. It is especially helpful for clinical syndromes, (mood disorders), substance abuse (alcohol variants) and personality disorders, (borderline PD). The MCMI-II is designed to help detect personality characteristics that may indicate the presence of a personality disorder. This information can be helpful during the diagnostic and treatment planning phase of alcoholism management. Early identification of personality disorders and/or potentially problematic personality characteristics can help clinicians plan a more effective treatment program for each individual.

  • Beck Depression Inventory - This is a 21 item self-report measure to determine the extent of the patient's reporting various signs and symptoms of depression.

  • Wender Utah Rating Scale - This is a 61-item questionnaire. The patient self-reports various behaviors consistent with attention deficit disorder based upon behaviors recalled during one's youth.

  • Sexual Addiction Screening Test - The Sexual Addiction Screening Test is a 25-item self-administered questionnaire that compares the patient's responses with those of individuals traditionally seen as having repetitive, compulsive or addictive sexual behaviors.

  • PDQ-4 - This questionnaire gathers the self-reported information of the patient that is consistent with a DSM-IV (Diagnostic and Statistical Manual of the American Psychiatric Association-version 4) categories of personality disorders. It is not a confirmatory test of the personality diagnoses, but must be compared with the patient's clinical presentation.

  • Child Abuse Potential Inventory, (CAPI) - An excellent tool when used in conjunction with other psychological testing, especially for impulse control, to identify whether a father is apt to "physically" abuse a child or not.

Polygraph Testing

• Frequently, when any father is accused of any inappropriate action toward a child, a detective, social service's investigator, a prosecutor and, many times, the father's own attorney, will request that he submit to a polygraph test. Under the right circumstances, this can provide an excellent method of resolving all issues for someone falsely accused, but done incorrectly, the results can be fatal.

• Many times the father, knowing that he is innocent, will agree to the examination and then fail, which indicates guilt and results in a full-scale investigation being conducted with the emphasis on guilt. Because the father "failed," the polygraph, some "do-good" social workers, detectives or even prosecutors will even go so far as to manufacture evidence, when there is none, in their desire to convict and get what they perceive to be a child molester off the streets. It is also not uncommon for a prosecutor, in a criminal trial, or opposing counsel in a civil trial, to "pump-up" their witnesses and experts by telling them that the father must be guilty because he "failed" the polygraph.

• The single most important question then becomes, how is it possible for a father, who is innocent, to fail a polygraph test and the answer is simple; these tests have "human" factors involved. A polygraph examiner could have a pre-conceived belief that the father is guilty and, as a result, the testing can be structured to show guilt, even when there is none. Believe it or not, people have "failed" simply because the examiner did not like the way they looked, dressed, wore their hair or acted. Again, the human side. One of the major problems with these tests is that sometimes "emotion" gets involved and the examiner sees, in their charts, what they want to see and not what is honestly there. If these examinations were conducted by "nuts-and-bolts, no emotion" machines and there were no human element or involvement, I suspect that many examination results would be drastically different. The human factor often plays a major role and can often be a "problem."

• In a criminal matter, people are led to believe that a polygraph cannot be used but, that is not always the case. A prosecutor and a defense attorney can agree to allow the polygraph results in, prior to the test being done. Neither will know the results and both are "stuck" with whatever they may be, so for that reason, it seldom happens.

• In some civil matters, such as custody, results can be admitted, on occasion, depending on the manner in which it is introduced, such as in conjunction with and to support overall psychological testing or in a custody evaluation.

• If the father's case is both civil and criminal, a defense attorney may request that he submit to a test. Many times, the attorney will say, "We want to make a motion to have it admitted, knowing the judge will not allow it, but to show the judge that the father successfully completed the polygraph." Unfortunately, what the real reason is, many times, the defense attorney wants to know if their client is guilty or not.

• As with every profession, you have good and bad polygraph examiners. Do not misunderstand, I am not against polygraph examinations when they are done correctly and by a professional and honorable examiner. As a matter of fact, I have personally conducted truth verification testing for the past 20 years and, often, they allow me to resolve issues in cases I never could have resolved had it not been for the tests. But prior to any testing, you need to "know" the examiner you are dealing with and their history.

• As a perfect example, what happens if a polygraph examiner fears that if they pass someone and then the "evidence" without question, supports their guilt? Isn't that a direct reflection on the examiner? Think it cannot happen? An examiner tested a young boy who alleged that he had been sexually molested. He passed the boy. In that case, psychologists, detectives and the prosecutor were absolutely convinced that the boy was telling the truth. A short time thereafter, the young man admitted that the allegation was a lie. When confronted, the polygraph examiner admitted that the boy had problems with the testing, but he passed him because, "Why would a child lie about something like that?" In another case, a law enforcement examiner "failed" an accused. The actual charts he produced from the tests were then examined by an expert, who found no deception whatsoever, and the examiner then admitted that "he felt sorry for the child" and thought the accused "looked like a child molester."

• One of the most often asked questions is, "Can I beat the polygraph?" Absolutely, but the fact is, you are not "beating" the "machine," you are "beating" the examiner. It is highly unlikely that will happen with an experienced examiner though, because they will quickly realize that you are attempting to manipulate the results and why would you have a desire to do that if you were innocent?

• When submitting to a polygraph, there should be a thorough pretest interview in which all possible issues that may fail an innocent person are addressed. It is vital to discuss any problems or issues that may affect the results with the examiner during this interview. Remember, something that means one thing to one person could mean something entirely different to someone else. I tested a man that had been accused of rape. The evidence against him was overwhelming, yet when I asked him if he "raped" the woman, he said no, and he was not being deceptive. When we discussed the matter, I asked him what the word "rape" meant to him. He said "rape" was when you "beat up" a woman. That was "his" definition of rape and no, he did not "beat up" the woman. He took her sexually, so as to "his" definition, he was being truthful when he responded that he had not "raped" her.

• During testing, there are normally three type of questions; control, relevant and irrelevant. Relevant questions can be "Did you molest this child?" Irrelevant questions can be "Is today Friday?" are used to develop a "norm" for chart patterns. A control question addresses an outside issue, not pertaining to the issue that the test deals with. For example, if you asked someone, "Have you ever stolen anything in your life?" Certainly they have, but the examiner may ask them to respond that they have not. The idea is, if there is more "reaction" to the control question than there is to the relevant issues, that is certainly indicative that the responses to relevant issues are not deceptive. Not attempting to be amusing, but in my testing, as a control question, often I'll ask, "Do you visit a dentist regularly?" Most of us do not. The question is actually psychological. Without the person being tested realizing it, I have actually "offended" them to some degree. They begin thinking, "Why would he ask something like that?" "Does he see something funny in my mouth?" and before long, many of them actually have their hand covering the front of their mouth out of embarrassment. When I conduct the test, if the person is not guilty of the issues being tested for, there will normally be a very strong reaction to the "dentist" issue, because, as I said, it can be offensive. If, however, the person I am testing is guilty, there will be no reaction whatsoever to the control question. They could care less what you say to them. Their only concern, "is this machine going to catch me?" In those cases, obviously, the reaction is to the relevant issues.

• As I said previously, a polygraph examination, under the right circumstances, can be a blessing and can result in all charges against an accused being dismissed, but before "jumping" to take one, I would strongly suggest you work with an expert in this field. For example, if we have a client who is offered a test by the prosecutor, law enforcement or social services, we always have a pre-test done. We assure that before any testing, we carefully educate our client as to the "ins and outs" of any polygraph. It is important for them to understand that a polygraph must deal with "one single" issue. The examiner cannot go off on a "toot," in an attempt to determine anything you have ever done wrong.

• After carefully discussing the polygraph, we get an examiner that has the credentials and the fortitude to stand by their results if later test results, especially those administered by law enforcement, are different. Once the client is thoroughly educated and passes our test, then we allow them to submit to the "prosecutor's" examination. In that manner, if they pass, all charges could be dismissed and in the event they fail, the results of the first test are used as rebuttal. Also consider another very important issue. If the client does fail our test, we are the only ones who know the results and under those circumstances, we attempt to determine what caused them to fail and to determine if the problem can be corrected well prior to allowing them to take any examination requested by anyone else.

• There are many honorable and professional polygraph examiners who test properly and without emotion, but never lose sight of the fact that there are those who "want you to be guilty." If confronted with a false allegation and given the opportunity to resolve all issues with a polygraph, by all means, accept the offer, but only under the right circumstances. Unfortunately, most attorneys will not allow their clients to take any testing. In many cases, as bad as I hate to admit it, we have had the client take the testing without their attorney's knowledge or consent, but in every case, the client has passed and the matter resolved. Please do not misunderstand, it is not my intention or desire to "go behind the back" of my client's attorney, but it is my desire to "win" and stop the allegations before they get out-of-hand whenever possible. We have spent years defending these cases and know what it takes to win. Some small-town lawyers, who have a general practice, have never been near a false allegation case. It is normal for them to refuse to allow their client to submit to any testing and for them to take the attitude, "Let's wait and see what we are up against before doing anything," but that is not always the best advice. Each case is different and a defense strategy must be approached differently in each case.

Voice Stress Truth Verification

• An instrument, like the polygraph, used for detection of deception, viewed by many as "junk" science, but licensed and used in some states. When confronted with a "voice stress" issue, I always recommend a polygraph and, that is surprising since I have used a "voice stress," Psychological Stress Evaluator, myself for the past 20 years.

• The PSE, or Psychological Stress Evaluator, is a voice stress analyzer that was designed to be used in the same manner as a polygraph for one-on-one testing for the detection of deception. The PSE detects, measures and graphically displays certain stress-related components of the human voice.

• When one speaks, the voice has two modulations; audible and inaudible. The audible portion is what we hear. The inaudible modulation comes from involuntary areas, those not totally controlled by the brain or thought processes. Internal stress is reflected in the inaudible variations of the voice. These differences cannot be heard, but they can be detected and recorded by the PSE.

• Superimposed on the audible voice are inaudible frequency modulations and the FM quality of the voice is susceptible to the amount of stress that one may be under when speaking and this can be measured. To the human ear, a person may sound perfectly normal, free of tremors or "guilt-revealing" sound variations but, the PSE senses the difference and records the change in the inaudible FM qualities of the voice onto a chart. When the chart is interpreted by an experienced examiner, it reveals the key stress areas of the person being questioned.

• The key to successful use of the PSE, like the polygraph, is in the preparation of selected questions keyed to the individual and structured to reveal normal or truthful answers and answers that are false. Once the personal pattern has been established, any evasive or false answers reveal stress. If a person is not telling the truth, analysis of their voice patterns will reveal it.

• My main use of the PSE is as an investigative tool. The machine has great advantages over the polygraph in that it does not have to be used at the time of the interview or interrogation. A tape recorder is used to make a permanent record of the interview and this tape can later be fed into the PSE where the voice reactions are recorded on a chart. I do not use it for one-on-one testing and I do not recommend that anyone submit themselves to such a test.

The Custody Evaluator

• Assuring that you have the proper evaluator is not an easy task because the wrong custody evaluator could quickly destroy a father's chances of gaining custody. While many attorneys are quick to reject a custody expert, usually because of fear that they may go the wrong way, I find them extremely beneficial for many reasons. As I stated previously, this is all an "image" game for the father and a "proper" evaluator, again, is one that is honest and unbiased, one who has experience with false allegations and one who understands parental alienation and knows how a child can be affected by these issues. At the point where the custody evaluator becomes involved, my client and their "image" have been well prepared. I would have a list of "collateral" witness names for the custody evaluator as well as a list of "expert" names that my client has successfully completed testing with. If the proper evaluator has been chosen, I know that they will talk with the individuals whose names have been provided, expert or other wise, and that the information they receive will be included in their final report. Simply put, I use the custody evaluator to present the most perfect scenario possible of my client to the court. In that manner, I have one expert, usually court appointed, who introduces all other test results specific to my client. No, I am not suggesting that anyone "manipulate" the evaluator, but you certainly have the opportunity to "point" them in certain directions that would show the father in the best possible light.

The Three-Prong Defense Outline

• Exposing the False Allegation

  • There are a number of tests available that the father can take to enhance his defense in proving his innocence such as the Abel Screen and a full psychological evaluation, including a polygraph. While a polygraph is not admissible, it can carry a great deal of weight if done properly. If a polygraph is considered, I would strongly recommend an "out-of-area" examiner, who has worked with child abuse and false allegation cases and who has the credentials to stand behind their results. I have seen cases where an accused took a test with someone, was told they passed, then agreed to take a test at the request of the prosecution. They did, were told they failed and attempted to use the results of their prior test to prove the State's test was wrong. In one of those cases, the local polygraph examiner folded when he learned the "State Police" had failed the accused. The initial test the accused took was worthless.

  • Another manner of proving allegations are false is to conduct a careful study of all interviews the child accuser has been exposed to. Simply put, a child, who is making a false allegation of abuse, cannot provide details to events that never took place, but they will usually try. Many times, a careful analysis of every interview the child accuser was exposed to can then provide an expert with the ability to say, "The allegations are not credible." That is why it is vital to "demand," that any and all interviews of the child accuser be video taped through whatever means or motion is necessary.

• Proving the Father is a Fit and Proper Person to Have Custody

  • Showing the father in the best light for the court is simply an image presentation, but one that seldom gets any attention at all from local attorneys.

  • The initial step should always be, determine what negatives the father is facing and develop a strategy to answer or respond to them.

  • The next step would be to retain a local psychologist to assist in building whatever experts may be required. Let's say a father is being accused, not only of child sexual abuse, but also for misuse of drugs and/or alcohol. Obviously, to present the father in the best light, it would be beneficial to retain a substance abuse expert, who can test the father and either report to the court or to a custody evaluator.

  • If there is any question the father may have problems taking any of the potential tests that the experts may require, consider having the father tested by an expert in neuropsychology. In many cases, a father is under a great deal of stress and that stress can result in his acting in a manner he would not under normal circumstances. Neuropsychological testing can quickly determine what problems may exist under the current circumstances, if any. Any findings here could be very beneficial to the courts or, again, a custody evaluator.

  • In many cases, a custody evaluator is an excellent idea, however, selecting the correct evaluator is critical. In many cases, the court may select the evaluator, but they may accept recommendations from the attorneys involved. If a court accepts three names and makes a selection, that will end up being the "court appointed" evaluator, so providing potential candidate names for the court is not something that needs to be done on a whim. Custody evaluators have a history and that history should be carefully examined prior to their name being listed. That is where the local psychologist can be especially useful.

  • Recommend a psychologist for the children. As previously stated, there are many occasions where a professional and unbiased child psychologist is actaully able to develop such a strong and close relationship with the child that the child will tell them, not only the truth, but who, if anyone, actually put them up to making the allegation.

• Proving the Mother Unfit

  • There are many ways to approach this, but in a false allegation/custody case, the first thing I attempt to do is show that the mother is responsible for the allegations, a fact that is true in many cases.

  • When allegations of sexual abuse arise out of a custody battle, the allegations themselves should, at the very least, be suspect.

  • I have been involved in many cases where either the mother was directly responsible for the allegations, assisted in enhancing them or knew they were not true, but used them in an attempt to destroy the father.

  • In any case where the mother is guilty of using a child to reach an end, she is not fit to have the children and that, above all, must be presented to the court.

Final Preparation

• Final preparation means having the father properly prepared to testify because, normally, as much as 50% of their success will rest with them, what they say and how they say it.

• Determine the order that you plan to present evidence and line up witnesses accordingly. In short, have a game plan and that does not suggest walking into court and "shooting-from-the-hip."

• Develop an outline of what evidence you plan to offer and the procedure in which you plan to offer it. In doing so, identify your witnesses carefully and outline the specific testimony you plan to obtain from them.

• Assure that any and all witnesses are subpoenaed, well in advance of trial. You need to provide witnesses with the ability to reschedule possible obligations they may have and that does not suggest telephoning them the day prior to trial and asking if they are available.

• Assure that the attorney's name and telephone number are clear on the subpoena because most people who are served will want someone to contact. That provides an excellent opportunity for the attorney to conduct any last minute interviews that are necessary and to arrange the most convenient time possible for each witness to appear.

• It is an excellent idea to have someone who is familiar with the overall case to serve the witness subpoenas. More often than not, when witnesses are served, and this includes subpoenas for records as well, the people will talk and possibly provide information you did not have previously. That is another excellent reason for serving subpoenas well in advance of trial, so you would have adequate time to follow up on any new information that is received. Again, planning and strategy.

Pitfalls to Avoid