W.V. Enacts Statute Against Parental Interference, False DV, and Child Abuse Allegations

http://mensnewsdaily.com/2008/03/31/...e-allegations/


W.V. Enacts Statute Against Parental Interference, False DV, and Child Abuse
Allegations

David R. Usher
March 31, 2008

The West Virginia state legislature has passed an important bill that will
reduce false allegations of child abuse and neglect, domestic violence, and
parental interference. Men and Women Against Discrimination (MAWAD) led the
lobbying to get this passed.

Bill 3065 is perhaps the first of its kind - a massive improvement over
prior "wild west" family law where accusers run the place armed with figural
bullets.

Courts will be able to grant compensatory parenting time and even reverse
primary custody in cases where a parent has a history of making false
allegations of child abuse, neglect, domestic violence, and in doing so
interferes with the parenting time of the accused parent.

There is still room for improvement. The burden of proof for demonstrating
that an allegation was false is still rather high, and the misdemeanor
penalty rather low. A three-part test was created, requiring proof of all
three elements.

The allegor must have made an allegation of child physical abuse, neglect,
or sexual abuse, and
the prosecutor must prove that the person knew that that an allegation was
false at the time the allegation was made, and the prosecutor must prove
that the allegation was made to influence a custody proceeding.

Elements two and three are not mutually exclusive: for example, if a person
says "if you don't do what I want then I will make an allegation of child
abuse", proof of number three has been made. But then, you have to prove
that, at the time of making the allegation, the person actually knew it was
a false allegation. All a person probably has to do is to spout one reason
(any reason verifiable or not) why they thought it was true to get off the
charges.

In other words, the merits that go to element three may not necessarily
transfer to proving element two, despite the fact that a confessorial
statement going towards element 3 does in fact also go towards showing that
the allegation was not founded on truthful belief.

Such is the problem with "state of mind" standards that are not attached in
any way to objective standards of proof.

However, use of the word "fraudulent" in the legislation may open doors for
consideration of the rather large gray area between proving abuse happened
and proving the allegation was false.

One other place where there is room for improvement: investigations are done
solely by the Department of Health and Human Resources - who are not versed
on legal standards and tend to make subjective decisions lacking basis for
the decision. Police should be involved in any investigation - the social
workers ask the questions at interviews, and the police decide whether or
not an arrestable offense has been committed.

West Virginia is definitely headed in the right direction. Next year, it
should expand what it started and ensure that allegors and alleged
perptrators have equal rights and protections under the law. Any other
arrangement is abuse by fiat. My hat is off to those who helped bring about
this major improvement in West Virginia statute.

Those who are interested may attend the signing of this bill by Governor Joe
Manchin on Thursday, April 3 at 4:00 pm in the reception area of the Capitol
building in Charleston.