Tag: guilt

I Am Going through a Custody Battle and the Other Parent Is Making False Statements About Me in Court. What Can I Do to Protect Myself and My Child?

If you want just my direct answer to this question, skip to the last paragraph, but I submit that you’ll have a much better understanding of the answer if you read all of this first.

This is and has been a major, serious problem in family law for as long as I can remember. It’s not getting better. It victimizes far too many innocent people who naively trust the legal system to value truth and justice above all.

Guilt by accusation. Accuse your spouse of being an abusive parent, and immediately the accused finds himself or herself in a position of guilty until proven innocent.

Judges (and that includes the domestic relations commissioner) are, with due respect to them, quite often (so often; more often than you’d expect or hope, frankly) suckers for substituting and accepting the seriousness of the allegations over the substance of the evidence. Why?

Many people innately know, but struggle to articulate it, either because it’s subconscious or too shameful to admit: the cowardly, lazy allure of “better safe than sorry” and “abundance of caution”. “Treat all allegations of spousal or child abuse as true,” so the “reasoning” goes, “and that way we prevent abuse, whether real or imagined.” Why go to all the trouble of investigating, factfinding, and truth seeking when abusers might lie and get away with it? No, better to treat pretty much every abuse claim as true. And if innocent parents (mostly men, but a fair and growing number of women too) are the victims of such a policy (ruined reputations, loss of standing in the community, loss of friends, loss of employment, being persecuted), it’s a price worth paying (especially when the judges and commissioners themselves don’t pay that price themselves) “if it saves just one life.” It’s obvious nonsense (no judge who treats people this way would ever want to be treated that way), but that is culture of the modern legal system. I wish I could deny it, but I’d be lying, if I did.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

When it comes to accusations of abuse (or even danger of being abusive), it’s terrifyingly far too often the opposite of the “Better that a hundred guilty men go free than to convict one innocent man.”

So, if you are being falsely accused, don’t rely on “I can’t prove a negative,” “accuser has the burden of proof,” or “innocent until proven guilty.” If you can prove you’re innocent, do it. Do everything in your power to prove your innocence. Spend the money and the time and the effort to fight for and to prove your innocence. Strive to hold the courts to being competent and impartial because when it comes to allegations of spousal or child abuse, many courts will not exercise the courage to dismiss such claims for a lack of proof.

Utah Family Law, LC | | 801-466-9277

(65) Eric Johnson’s answer to I am going through a custody battle and the other parent is making false statements about me in court. What can I do to protect myself and my child? – Quora

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Erring on the side of caution is not merely cowardly, it is evil

Erring on the side of caution is not merely cowardly, not merely corrupt, it is evil. 

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. 

But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever. 

— John Adams  

(emphasis added) 

Erring on the side of caution when it comes to allegations of spousal and/or child abuse is a blatant violation of the preponderance of evidence standard. When courts err on the side of caution, when they take a better safe than sorry approach to allegations of spousal or child abuse, they aren’t doing anything virtuous, but the polar opposite. The guilty until proven innocent approach is a violation of the other spouse’s/parent’s civil rights. Any judge who issues a restraining order or protective order or supervised parent time order on the basis of erring on the side of caution has committed misconduct. Such is clear error and grounds for appeal from “correctness” (the appellate court decides the matter for itself and does not defer in any degree to the trial judge’s determination of law [1]to “abuse of discretion” (when a serious inequity has resulted [2], when a judge acts outside the law [3], when a ruling is beyond the limits of reasonability [4], is inherently unfair [5], fails to consider all the legally relevant factors [6]and all the way up to “clearly erroneous” (findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court’s determination [7] and findings are clearly erroneous if they are against the clear weight of the evidence or if the appellate court reaches a definite and firm conviction that a mistake has been made. [8]). [9]  

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

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Why does a parent asking questions turn into a trial?

Why does a parent asking questions turn into a trial?

A parent questioning a child often turns into “a trial” when either

1) the child questioned is guilty of wrongdoing and does not want to be exposed or

2) the child questioned is innocent of any wrongdoing and feels as though the questions call his/her good character into doubt, which leads to the child resenting the questioning.

Keep that in mind if you are a divorcing or separated parent.

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

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If someone has an affair with one he/she knows is married, which offense is greater: the adulterer or the home wrecker?

If someone buys kiddie porn from one who is selling it, who is the worse of the two? Neither. They are both criminals. Two people who knowingly engage in an adulterous affair are both equally wrongdoers.

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

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Why do some lawyers settle for a plea bargain when they know their client is innocent?

Many different reasons, but here’s a good example of one reason: because there are times when being innocent may not result in the jury believing you are, in fact, innocent.

I had a client (some details of the story are changed out of respect for privacy) who caught his wife in bed with their neighbor. He and the neighbor were friends, and so he was welcome to enter his neighbor’s house without knocking. Somehow, this friend/neighbor must not have figured my client would come to the house without knocking on the day the neighbor and my client’s wife were in bed together, asleep. When my client rounded the corner and entered the bedroom, he screamed in anger and pain, “Heather*, you slut!” The neighbor, who’d been drinking, woke up startled and disoriented, thinking there was an intruder in his house and he charged my client trying to kill him (he didn’t know it was his friend). My client was caught off guard and was so scared he soiled his pants and took a swing at the attacking neighbor, breaking his jaw.

My client, who had never been in trouble with the law a day in his life, was charged with aggravated assault. I believed he was innocent. His wife, who witnessed the whole thing, believed he was innocent. Do you believe I could have gotten the jury to believe that a man who caught his wife in bed with another guy broke the guy’s jaw accidentally and/or in self-defense?

I didn’t either. Or more accurately, I didn’t think the odds were good enough to risk it.

Worse, if my client had been found guilty by the jury, he could have gone to prison for at least 5 years. That’s not just five years, but five years away from his wife (who he still loved and who still wanted to be with him) and their 2-year old daughter. And losing a job he loved and that paid well.

The prosecutor offered him a deal to plead to a lesser charge and to get 30 days in jail. It was a bird in the hand is worth two in the bush situation.

I told my client that if I were him, I wouldn’t risk going to prison for at least 5 years if I could plead guilty and serve only 30 days. He could serve the time and then go back to his family and job without skipping much of a beat, compared to 5 terrifying and miserable years in prison.

It wasn’t easy. He has a criminal record now. He’s a felon. He can’t vote or own or use a gun. But he’s a free man who spent 30 days away from his family and job and life instead of 5 years. Not an easy choice to make, but not the hardest to make, either.

This is a perfect example of one situation where I advised my client to take a plea deal.

*not her real name

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

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