presumption of innocence

[boomersmom]

Ohio

Long Story, Short Version:

Divorced in '99; was named CP of 2 kids (now 10 & 12); ex & I agreed on very liberal parenting schedule (about 50/50); Ex is remarried, I am remarried. No problems until...

My current husband was charged last summer with GSI regarding the child of a former friend of mine, who I'd been babysitting. Without going into specifics, I know without any doubt that what the child claims is untrue. (This case has not yet gone to trial).

When my Ex learned about the allegations against my husband, he filed for and was awarded emergency custody based on the fact that I believe my husband is innocent. I am permitted to see the kids on weekends, provided that they have no contact with my DH or any member of his family - including my stepson, who we have custody of.

I've been through 10 months of being viewed by the court as a piece of crap, because everyone, including the family court, seems to disregard the constitutional guarantee of presumtion of innocence.

The court-appointed parenting specialist performed a full investigation and recommended that the court not make a decision until my husband's case was finished. However, his trial has been delayed several times (two judges retired, the state offered a plea bargain, etc.) and the family court judge denied my motion for continuance.

I'm going in to court on Tuesday to fight to retain custody of my kids. I'm acting pro se, because every available penny has gone to my husband's legal fund.

I understand that the family court's first job is to protect the interests of the children, but the judge has already told me that no matter what happens in my husband's case, she can still forbid me to allow him around my kids.

My question is: doesn't the Court have a responsibility to presume innocence? Why is it that they can punish me because I didn't throw my husband out of the house as soon as this other child made an accusation? I KNOW the kid is lying...beyond any doubt...but everyone looks at me like I'm some kind of "stand by your man" kinda chick...

Any insight you can offer would be helpful. I've got to try and figure out how to make the judge understand that it isn't just my "belief" that my husband is innocent, it is my firsthand knowledge.

 

[I AM ALWAYS LIABLE]

My response:

As you can imagine, and hopefully appreciate, children are strictly protected by the courts, law enforcement, child agencies, and the public in general.

Where a child is involved, it is better to err on the side of safety and protection, rather than "pick up the pieces" of a bad situation later on. The laws are purposefully designed to safeguard, and protect, our most valued resource - - our children.

Therefore, when it comes to children, the unwritten presumption is "guilty until proven innocent."

IAAL

 

[boomersmom]

but what am i supposed to do?

IAAL: Of course I understand and appreciate the court's responsibility to protect the children...but what would they have me do? Just divorce him because a crazy allegation that I know can't possibly have happened was made?

And what example would that be setting for my children? That the committment I made to their stepdad was only good as long as nobody ever said anything bad about him?

Yes, my first duty as a parent is to protect my children from potential harm, but a close second has got to be to raise my children to be honest and make sound moral decisions - by living my life with integrity - and dumping my husband because some little girl who was starved for attention from her own parents made up a semi-plausible story would not be taking the high road.

The parenting specialist stated that it's "unfortunate" that I have "chosen to support" my husband "over my children". I never had a choice! Besides which, again, it's a choice that I should never have to make...

How can the Court possibly proceed in this matter, with my hubby's trial not yet resolved?

 

[I AM ALWAYS LIABLE]

My response:

I fully realize, and can appreciate, the fact that you are "between a rock and a hard place."

But, your questions were already answered, when I said, "Where a child is involved, it is better to err on the side of safety and protection, rather than "pick up the pieces" of a bad situation later on."

I understand you don't "like" the answer, or what's going on. But, that's the way it is when it comes to children. Their protection is first and foremost. For all anybody knows, your husband could, in fact, be guilty. The court is saying to you, "We're not going to wait to find out. Your children are automatically deemed to be in need of protection until this matter is straightened out and resolved."

When your husband's case is over, and if he's acquitted, then your children will come home.

IAAL

 

[theother]

priorities

You know, I feel for you I really do. If you are honestly convinced that it was absolutely impossible for the GSI (not really sure what that is, guessing its some sort of sexual abuse) to have occured, then I can see that the situation sucks for you. However, the first priority should be to protect the children, not your husband or your relationship or your custody. If you are going to stay with your husband than the best interest of your children would be for custody to go to their father. It's better to be safe than sorry. I would say that you shouldn't even consider trying to get your children back unless it is absolutely proven that this child is lying and your children and husband are evaluated by a therapist. Besides, how are you positive that it didn't happen except for your feelings that you know your husband of course. My mother still hasn't gotten over not realizing that we were being abused as children. I'm sure she would rather go through what you are going through than carry all the guilt that she has now. I don't even think she should feel guilty, she acted immediately when she found out and protected us to the best of her ability. Don't you want your children to be able to say the same thing about you?

BTW, most children do not lie about things like this unless its a situation where they have been coached. Usually that doesn't happen out of the blue and against what is essentially a complete stranger.

 

[boomersmom]

picking up the pieces

You're missing my point. It isn't that I don't "like" your response.

My point is that the Court is causing more harm than it imagines it is preventing. It will take us years to "pick up the pieces" of our family unit - that is, if we get that opportunity at all.

I don't understand how the judge can rule in the custody matter before my husband's situation resolved, without blatently trampling the presumption of innocence -- unless she wants to have a trial within a trial and essentially hear his case as well so that she can make an informed decision.

 

[boomersmom]

GSI = Gross Sexual Imposition

I didn't need to be "convinced" that it didn't happen, I know that it is impossible for the story she tells to be true (hard for me to get into it, but have witnesses and evidence to prove he couldn't have done it).

For the record, when the child first made her allegations, I didn't allow my husband to come home for about a week (and he agreed to this because he knew he hadn't done anything wrong). I had always talked to my kids about good/bad touches, etc, and made sure that there was no reason at all for me to not trust him before I let him come home. I knew that the other kid was lying, but still took steps to question my own kids to be safe.

Yes, my first priority is to protect my children. But from what am I protecting them, if I know there is no threat? My husband has been evaluated by a therapist - he doesn't fit any of the profiles of the people who commit these types of crime.

As far as my children go, they will need counseling to help them understand why they've been ripped away from their mom & stepdad.

If you ask my children (as I have) what they would have me do, they would say again that I should do exactly what I have been.

I've done mass amounts of research in the last year about sexual abuse (never having been abused myself). I understand about disclosure and how the typical abused child acts/reacts. Just a couple of points - the child knows my husband well, he's not a stranger. Second, this child's grandfather is a seasoned detective with the Crimes Against Children unit in the police department. Again, I have no doubt of my husband's innocence - not because I "believe" in him, but because it isn't possible for it to have occurred.

I do appreciate your feedback.

 

[theother]

look at it from the other side

You may know that he is innocent but you're ex doesn't. If you had reason to believe that your ex's wife was abusing your children, would you wait the year for the trial to be resolved before you tried to protect them? Could you send your children to visitation and not worry? What if you found out a daycare worker had allegations against them? Would you tell your children they still had to go and be cared for by them until he was convicted? If one of your kids made this allegation, would you believe them or would you wait until your husband went to jail before you filed for divorce?

Even if he is innocent, what harm comes to your children by allowing your ex to have custody? You were 50/50 before with no complaints so obviously he is capable of taking care of them. Your children are in a safe family unit with their father. You still get visitation. Their stepfather can't see them but stepparents aren't famous for having a whole lot of rights anyway especially if in the face of child welfare. What is so horrible about your ex having custody until this matter is resolved? Isn't this a small price to pay to ensure the welfare of your children?

 

[boomersmom]

misunderstanding, i think

ok, here's what isn't getting across...this isn't a trial to decide temporary placement of my kids until my husband's situation is settled. this is me looking at losing my kids (the 50/50 arrangement) for good. my ex is requesting that i be relegated to only every-other weekend visits...permanently.

if it were just a matter of temporary placement, i wouldn't be complaining...but these people are playing for keeps. and again, the judge tells me that she isn't bound by the rules of the criminal court - that is, she can still consider my hubby guilty, regardless of how his case is actually decided.

and no, my ex's child bride doesn't "abuse" my children, but she surely doesn't make them feel welcome. she's only 10 years older than my oldest - and is completely not prepared to take full-time responsibility for my two plus her own two. my kids tell me how they don't feel welcome at their dad's (even now), and that they know their stepmom resents them being there.

 

[boomersmom]

wow

i suppose i should have expected this. my problem is that i'm just naive enough to believe that the system works and that if you're a good person and do the things you're supposed to do, you'll be free to go about your business and live your life without the interference of the state or any other entity. wrong!!!

this little girl made up a story to get attention from her mom. because of it, my husband is looking at spending 3 -5 years in prison, potentially being labelled a sexual predator, losing his job, family, home, etc. but that isn't enough. i'm probably going to lose my kids, because i have integrity and intelligence enough to not assume he is guilty regardless of the facts.

i sincerely appreciate your comments, the other and IAAL. you've shown me that it really is not worth fighting... i'm just going to lose anyway.

 

[theother]

don't stop on my account

I think that IAAL is an attorney so he knows the system but I am just some random person on the internet that doesn't really know anything about family law. I was just presenting my uniformed opinion about why the court took the stance that they did. I sincerely hope that your husband is innocent and I hope that this mess is cleared up soon for your sake and everyone involved especially all the kids.

 

[marcus_n_tonya]

boomersmom

Okay, I will try to explain this to you in a way that you might understand. In the eyes of the public and in the eyes of the court you have supported your husband instead of protecting your children. The reason for this was explained to you by IAAL when he stated that in the courts it is better to err on the side of the safety and protection of the children.

The reason for this is simple. Once there is even an allegation of sexual misconduct of any kind the courts will not wait to find out if it is true before they protect the children. You are not only talking about an allegation but an actual charge. Your husband is an adult and can fend for himself but children are dependent on us as adults to protect them. It doesnt matter what you KNOW ... the courts will look at him as guilty until proven otherwise when it comes to the children. Presumption of innocence only exists in criminal court, not family court!!!

 

[marcus_n_tonya]

continued ...

Had you supported and protected your children (false allegations or not) by keeping step-dad out of the home until HIS matter was resolved then your children would still be home with you. Children can be told any number of reasons of why step-dad is away to ease that confusion but instead you are choosing to let them deal of the confusion of them having to leave the home and go to another home instead because you believe and support your husband.

If you want to have any chance at keeping your kids you might better go before that Judge and tell her that you are willing to do WHATEVER it takes to protect your children and that your husband will be leaving the home so that your children do not have to.

Your husband can be supported from afar and if he is acquitted then he can come home when it is all over ... if you lose your kids then that is much more permanent and harder to change. As far as values ... teach your kids that THEY alwasy come first and foremost!!

 

[theother]

well said.

 

[craftymom]

Re: misunderstanding, i think

and no, my ex's child bride doesn't "abuse" my children, but she surely doesn't make them feel welcome. she's only 10 years older than my oldest - and is completely not prepared to take full-time responsibility for my two plus her own two. my kids tell me how they don't feel welcome at their dad's (even now), and that they know their stepmom resents them being there.

So, let me see if I have this straight. YOU are concerned that your children won't be properly cared for in your ex's home, based on nothing more than the age of their step-mom. But, somehow, your EX shouldn't be concerned with the children living in the home where their step dad has been charged with a crime against another child.

Yep, makes sense to me!