In the reverse situation, i.e., when a parent is found guilty of child abuse, the consequences can be harsh. His or her custody rights can be limited. In extreme cases, visitation can be denied. In other cases, visitation can only take place under supervision.
But what happens when the opposite situation takes place? When one parent falsely accuses the other of child abuse, merely to gain leverage in a custody dispute?
The answer is spelled out in California Family Code section 3027.1. That section provides as follows:
3027.1. (a) If a court determines, based on the investigation
described in Section 3027 or other evidence presented to it, that an
accusation of child abuse or neglect made during a child custody
proceeding is false and the person making the accusation knew it to
be false at the time the accusation was made, the court may impose
reasonable money sanctions, not to exceed all costs incurred by the
party accused as a direct result of defending the accusation, and
reasonable attorney’s fees incurred in recovering the sanctions,
against the person making the accusation. For the purposes of this
section, “person” includes a witness, a party, or a party’s attorney.
In lay terms, this means that a person who has been falsely accused of child abuse, and who successfully defended him or herself against said accusations, can go after the person or people who made the accusations for the cost of his or her defense, or , put differently, for his or her attorneys fees. These are known as “sanctions.” In addition, that same person may also recover attorneys fees incurred for the cost of bringing the motion for sanctions.
The people who are usually responsible for paying the attorneys fees or sanctions include the party who made the false allegations and his or her attorney.
In order to be able to recover one’s fees, that person must have had to defend his or herself against the accusations and have won the lawsuit.
The motion for sanctions must be filed before the earliest of 60 days after the judgment exonerating him or her is served, OR 180 days from the entry of such judgement.
Several months ago, I handled a matter which fell under the perview of 3027.1, for a client who lives in another state. The opposing party, who lives in California, accused my client of domestic violence against their child while the child was in her custody. I requested that the court order a “minor’s interview.” That is when a court appointed expert, usually a PhD psychologist, interviews the minor, and testifies in place of the minor. I felt confident making this request. After having been in practice a number of years, one gets a sense of people. I was certain that my client had not abused her child.
Sure enough, the expert refuted all of the claims of the opposing party. The Judge dismissed the DVPA claim for lack of substantial evidence. Per statute, I later filed a motion for attorneys fees within 60 days after the judgment was entered. At the hearing for fees, the Judge ordered the opposing party to reimburse my client for attorneys fees she incurred in defending the allegations of domestic violence, for the fees incurred in preparing the motion for santions under 3027.1, and for travel expenses incurred in coming to California to defend the allegations.
The moral of the story is, never file claims of domestic violence in order to get leverage in a custody action. It could prove to be very costly!