Tag: false accusations

Mother Made False Accusations Against a Father to Win Custody and Had a Restraining Order Put in Place With No Evidence to Back Her Reason, Can This Be Overturned?

Can it be overturned? It is possible.

Will it be overturned? The odds don’t favor Dad. While some fathers who are falsely accused do obtain vindication, the odds are against them. Why?

There is an undeniable bias in favor of mothers who claim to be victims of abuse or who claim that their husbands/children’s father is abusive. Courts err on the side of caution, take a “better safe than sorry” approach. There are many reasons for this, including but not necessarily limited to: beliefs that women don’t lie about abuse, belief that children are generally better off in the sole or primary custody of their mothers, and cynically calculating that it’s better for the judge’s career to issue protective orders against men who are either innocent or there is a question of their innocence than it is to “take the chance” on innocent until proven guilty. When court’s engage in such behavior, it’s lazy, it’s cowardly, it’s judicial malfeasance.

How can/does a falsely accused parent (father or mother, for that matter) clear his/her good name? Short of the kinds of things one cannot control (i.e., suddenly getting a new, sympathetic judge because the old judge retired or got sick, etc.), the most effective way is: presenting the court with evidence so overwhelming that the court cannot deny it, cannot disregard it without looking biased and/or incompetent. Easier said than done, and not always possible, but it’s really the only moral option.

Utah Family Law, LC | | 801-466-9277

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“It’s pretty awful, but do you have a better alternative?”

“It’s pretty awful, but do you have a better alternative?”

I was asked the following question in response to this answer I gave to a question on

Here is my response to that question:

First, do not engage in dirty tricks. it’s tempting, but wrong. Very few people are able to make false allegations stick. They may get a momentary advantage from them, but few enjoy long-term benefits from lying and deceiving. Now I’m not going to claim that some dirty tricks are easy and effective, but that doesn’t make them any more right or justifiable to engage.

Second, live an upstanding life, ESPECIALLY once you become convinced your marriage is headed toward divorce.

Third (and very important, even though easier said than done), to the extent you reasonably can, ensure that you have independently verifiable proof that you are not any of the things of which you could be falsely accused in divorce.

Fourth (and very important, even though easier said than done), fight false accusations with everything you have. Some courts seem to believe a false allegation more the more the false allegation is made and/or the worse the false allegations are.

Fifth, regardless of whether you are falsely accused or not, when you or your spouse file(s) for divorce, get the best attorney you can afford. Divorce law and procedure and the legal system are not what you think they are, and if you don’t know what you’re doing, they can and likely will ruin you before you’re even aware of it or can do anything about it.

Utah Family Law, LC | | 801-466-9277

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How can we change divorce court to make it easier on the children?

  • Institute a “loser pays the prevailing party’s attorney’s fees” rule.
  • make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
  • focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
  • require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
    • rather than make the standard a negative one (e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
  • subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
    • Find out whether the allegations are true
    • Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
    • Why? Because:
      • if you are falsely accused of abuse, it will be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
      • far, far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution. What I mean is that the courts will analyze the situation like this: “I don’t want to determine that there is insufficient evidence to support these abuse allegations only to have a child or ex-spouse wind up in the hospital or dead later. If that happens, then it looks like I failed to protect the ex-spouse and/or child, which will look like I failed to do my job competently. I may end up the subject of news reports that humiliate and embarrass me and lays my job as a judge in jeopardy. But if I take a “better safe than sorry” approach, then while I will be violating my oath of office by infringing on the parental rights of a parent who I am not convinced is an abuser (and thus denying the children that parent’s loving and beneficial impact on their lives), that would be nigh onto impossible to prove (and stories like this rarely makes the news anyway), and I so I all but completely avoid the risk of being faulted for failing to protect. That settles it. I will err on the side of caution.” That’s a gross miscarriage of justice, but it’s far too often what judges do in these circumstances.
    • All but mercilessly punish litigants and witnesses who lie to the court. The purpose of our justice system is to get to the truth and then apply the law based upon the facts as best we can know them. “Perjury is considered a serious offense, as it can be used to usurp the power of the courts, resulting in miscarriages of justice.

Utah Family Law, LC | | 801-466-9277

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Smith v. Robinson – 2018 UT 30 – false allegations of sexual abuse

This opinion is subject to revision before final publication in the Pacific Reporter
2018 UT 30


No. 20160106
Filed July 5, 2018
On Direct Appeal
Fourth District, Spanish Fork
The Honorable M. James Brady
No. 150300034
Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill, Orem, for appellant
James Egan, Stephen W. Owens, Salt Lake City, for appellee
Due to her retirement, JUSTICE DURHAM did not participate herein; DISTRICT COURT JUDGE KARA PETTIT sat.
JUSTICE PETERSEN became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.
JUSTICE HIMONAS, opinion of the Court:


¶ 1 This case presents the question of whether a treating therapist owes a duty of reasonable care to a nonpatient parent when treating that parent’s child for potential allegations of sexual abuse. We answer this question in Mower v. Baird, 2018 UT 29, —P.3d—, a companion case that we also decide today. There, we hold that a treating therapist “owes a duty to a minor patient’s parents to refrain from affirmative acts that recklessly violate the standard of care in a manner that gives rise to false memories or false allegations of sexual abuse committed by the plaintiff nonpatient parent.” Mower, 2018 UT 29, ¶ 114. We remand this case for proceedings consistent with our opinion in Mower.


¶ 2 Rocio Smith had two children with her ex-husband, Aaron Smith.[1] Mr. Smith and his new wife (Stepmother) made several allegations that Ms. Smith had sexually abused the children. Mr. Smith filed a petition to terminate Ms. Smith’s parental rights.

¶ 3 After this, Stepmother brought the children to Kayelyn Robinson for therapy and told Ms. Robinson that therapy was being sought because of the alleged sexual abuse. Ms. Robinson improperly relied upon the information provided by Mr. Smith and Stepmother and made allegations that Ms. Smith had sexually abused the children. During treatment, Ms. Robinson also inappropriately acted as a treatment provider and forensic evaluator. Ms. Robinson worked with Mr. Smith and Stepmother to actively advocate against Ms. Smith. Despite Ms. Robinson’s clear conflict of interest, she continued providing therapy to the children.

¶ 4 At one point, the court hearing the custody dispute ordered Ms. Robinson to stop acting as the children’s therapist and to have no further contact with the children. Ms. Robinson blatantly violated this court order. Additionally, Ms. Robinson used somebody else’s key to access the children’s HIPPA-protected records and provided them to the parties, their attorneys, and the court.

¶ 5 As a result of Ms. Robinson’s actions, Ms. Smith lost visitation with her children for several years and “endured personal defamation, lost income and employment, and incurred enormous legal expenses.”[2] Ms. Smith filed suit against Ms. Robinson for malpractice and negligent infliction of emotional distress.

¶ 6 Ms. Robinson filed a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Utah Rules of Civil Procedure. Regarding the malpractice claim, the district court framed the question of duty and the categorical basis as “whether a treating therapist who testifies in litigation relying on their negligent formulation of forensic opinions, owes a duty to the party against whom they are testifying.” Using the factors from B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the district court concluded that no duty existed for that categorical basis and granted Ms. Robinson’s motion to dismiss the malpractice claim. That decision was largely based upon policy considerations aimed at protecting a witness from liability stemming from his or her testimony. The district court also granted the motion to dismiss Ms. Smith’s negligent infliction of emotional distress claim because Ms. Smith was unable to demonstrate the kind of harm required to sustain a claim for negligent infliction of emotional distress.

¶ 7 Ms. Smith appeals the district court’s decision on her malpractice claim but does not appeal the negligent infliction of emotional distress claim. Utah Code section 78A-3-102(3)(j) gives us jurisdiction.


¶ 8 “The question of whether a ‘duty’ exists is a question of law . . . .” Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986) (citation omitted). We review questions of law “under a correctness standard.” St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991) (citations omitted).


¶ 9 In Mower v. Baird, the companion to this case, we directly address the question of whether a treating therapist owes a nonpatient parent a duty when treating the parent’s child for allegations of sexual abuse by that parent. 2018 UT 29, ¶ 114, —P.3d—. There, we conclude that a treating therapist “owes a duty to a minor patient’s parents to refrain from affirmative acts that recklessly violate the standard of care in a manner that gives rise to false memories or false allegations of sexual abuse committed by the plaintiff nonpatient parent.” Id. This duty not only covers physical or property harm but also severe emotional distress. Id.

¶ 10 In this case, the parties disagree about whether the district court selected the correct categorical basis and, if not, whether it was the result of invited error. The district court ultimately based its holding on a categorical basis that involved treating therapists who testify in litigation. However, Ms. Smith “concedes that a testifying witness owes no duty to the opposing party with respect to the testimony given in court.” (Emphasis omitted). Additionally, Ms. Smith asserts that she “is not suing [Ms. Robinson] for her role as a testifying witness, but rather for her conduct in the treatment of the minor children that preceded her testimony.” Indeed, Ms. Smith’s complaint is void of allegations relating to Ms. Robinson’s testimony in the custody case.

¶ 11 The district court was required to rule in this case without the benefit of our opinion in Mower. In Mower, we announce that treating therapists owe a duty to a nonpatient parent during the therapist’s treatment of the parent’s child for potential sexual abuse by that parent. Id. To the extent that Ms. Smith is alleging harms that stem from Ms. Robinson’s testimony, the duty we announce in Mower would not apply. However, to the extent that Ms. Smith is alleging harms stemming from Ms. Robinson’s treatment of the children, our holding in Mower establishes a duty.[3]

Utah Family Law, LC | | 801-466-9277

1. Because this case is before us on appeal of a motion to dismiss for failure to state a claim, we, like the district court, take the factual allegations in the complaint as true. See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 2, 243 P.3d 1275; Brown v. Div. of Water Rights of Dep’t of Nat. Res., 2010 UT 14, ¶ 10, 228 P.3d 747.

2. Not all of these alleged harms are compensable. See Mower v. Baird, 2018 UT 29, ¶ 11 n.3, —P.3d—.

3. Our opinion in Mower extends the treating therapist’s duty to not affirmatively act in a manner that recklessly causes severe emotional distress. Mower, 2018 UT 29, ¶ 114. Although we recognized a path other than the zone of danger for recovery of emotional distress, we did not disturb our other negligent infliction of emotional distress requirements. Id. ¶¶ 77, 81 n.18. And we did not decide whether a cause of action for negligent infliction of emotional distress is necessary to recover those damages. Id. ¶ 113 n.21. The district court granted Ms. Robinson’s motion to dismiss Ms. Smith’s negligent infliction of emotional distress because Ms. Smith was unable to show the type of harm required for a negligent infliction of emotional distress claim. We express no opinion on whether Ms. Smith’s failure to appeal this portion of the district court’s decision precludes her from pursuing recovery under the limited emotional distress duty we announce in Mower. See id. ¶ 114. We leave this decision to the district court in the first instance.

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