By Laura Stevens, Wings for Justice Advocate
The chances are that if you are reading this then you are already mired within the court system and now are at the mercy of not only the judge, but the entire system (family court, police, child services). A lot of us enter the system with the belief, assumption and naivete that this is the place where you will get help to protect your child. If you are lucky, that is exactly what you will get. If you are like the majority of people trying to protect their children, you will be in for the fight of your life.
The criminal court system is set up to protect the rights of the accused, innocent till proven guilty, as it should. The family court system is set up to protect the rights of the parent/guardian (the accused abuser) and not the rights of the children (the abused). The difference between the Criminal Court and Family Court is that one is past tense (the crime already happened) and one is present and future tense (abuse is happening and will most likely continue to happen). So most of us agree that the criminal court system should error on letting a criminal (rapist, murder, pedophile) go free rather than incarcerate an innocent person. The family court system would rather err on letting a parent abuse their child rather than protecting the child from ongoing abuse.
The rights of the parents vs the rights of the child. The courts do not want to take away the rights of the parents. Children seem to be considered the equivalent of private property to their parents and the 5th Amendment in the Constitution protects the private property of people; stating that “no person shall be deprived of property by the government”. And while normally, most of us would support the idea of government not interfering with our rights to our children, it isn’t until we are forced to enter the family court system that we quickly realize… the rights of the children have all but been forgotten. One might ask if children have rights? Do children have any constitutional rights? Do children have the right to Liberty? Do children have the right to live free of tyranny? Or do they have to wait until they are 18 for such rights?
Without trying to sound too philosophical, we just want you to understand what you are up against. The courts are flawed, the system is unjust and children do not have the fundamental right to be free from abuse.
Children will tell about their abuse and it will be considered hearsay, or they will be too young to be considered credible, or the findings are unsubstantiated and nothing will be done (more on this later). It is not enough for a child to say they are abused. It has to be proven and it is rarely proven. And sometimes, even if it’s proven, the abuser still obtains access to the child. Please understand this, your child can state they are being abused by the other parent and they can state that over and over, year after year and most likely, this will not be enough. The child can scream and cry and yell “no” while being handed over to their abuser and that will not be enough.
Unfortunately and typically, you are going to have to learn how to help, support and protect your child as best you can while they continue to be abused for years to come by their other parent. We hope to navigate you through the court system so you will not have to do that but if you find yourself in this all too common predicament, then we want to help you create a long-term case as well as protect and support your child as best as possible in the interim.
So most likely, you will have to learn how to build a case over many years. You will have to wait until there have been many years of documentation showing behavioral and emotional issues that have developed. You will have to wait until the child is old enough, strong enough and brave enough to go up against their other parent and speak out, advocating for themselves that they don’t want to see their abusive parent anymore. (They may do this at a younger age but as we said earlier, they are not considered credible.) You will have to wait until your child is old enough to testify or speak with a judge AND only if that judge will allow their testimony (more on this later). And more often than not, you have to wait until they turn 18 years old. And wait until they are no longer children. And wait until they phase out of the family court system and are no longer under the family court jurisdiction, case closed.