Cost of False Allegations of Child Abuse in a Custody Matter
March 14, 2012 Leave a comment
In civil litigation parties often assert claims and defenses or take actions that are unfounded. Things like plaintiffs requesting punitive damages for routine negligence cases and defendants removing cases to federal court with no basis. On the Chancery side, I have witnessed parties throwing out allegations of child abuse with no reason. In some of these cases, it was the client making the claim and the attorney included it in the pleadings at their request. In other cases, the client didn’t even know the allegation was in the pleadings until questioned about it at deposition.
This should be apparent to any attorney, but the very nature of an abuse claim is so offensive and divisive that even more careful consideration than that given to standard issues should be given. The Legislature apparently thought it important enough to provide a legal remedy for unfounded allegations of child abuse.
Whenever in any proceeding in the chancery court concerning the custody of a child a party alleges that the child whose custody is at issue has been the victim of sexual or physical abuse by the other party, the court may, on its own motion, grant a continuance in the custody proceeding only until such allegation has been investigated by the Department of Human Services. At the time of ordering such continuance the court may direct the party, and his attorney, making such allegation of child abuse to report in writing and provide all evidence touching on the allegation of abuse to the Department of Human Services. The Department of Human Services shall investigate such allegation and take such action as it deems appropriate and as provided in such cases under the Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or under the laws establishing family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.
Miss. Code. 93-5-23 (emphasis added).
So exactly what can court costs and reasonable attorney’s fees financially cost the party making the allegations? In the COA case of McKnight v. Jenkins decided March 14, 2012, the Court affirmed a judgment of $23,969.17 for attorneys’ fees and guardian ad litem fees. I will point out that in addition to the penalty of financial costs, throwing out an unfounded allegation of child abuse needlessly enrages the other party and he or she will remember it forever. It will be remembered when you are trying to hammer out the property settlement agreement and it will be remembered when you are an hour late for visitation or a dollar short on child support.
In the McKnight case, it appears that the client rather than the attorney was the person responsible for making the allegations. However, what do you think will happen in a future case if an attorney blindly makes the allegation (without client consent) or fails to inform the client of the consequences of an unfounded allegation? My guess would be a Bar complaint followed by a malpractice action.
Child abuse is a serious issue and should be treated as such. Don’t make the allegation unless you can prove it…….or else you are setting your client and/or yourself up for significant costs, both financial and otherwise.