A bill that could restrict child custody from a parent found to have made a false allegation of domestic violence or sexual assault has alarmed advocates who say it could stop people from reporting such events out of fear the claim will be deemed unfounded.
The Kentucky Coalition Against Domestic Violence blasted House Bill 547, filed Tuesday by state Rep. Jason Nemes, saying it could make survivors fear fleeing an abusive situation or reporting it.
“Survivors may fear losing custody of their children or being criminally prosecuted if they are not able to provide sufficient evidence of domestic violence or child abuse,” said Angela Yannelli, CEO of the coalition. “This bill will put more children at risk, as well as the parents who are trying to provide a safe home for them, than it will save any children from harm.”
HB 547 also would add making a false claim of domestic violence or sexual assault to existing state law that makes filing a false report to the authorities a misdemeanor offense.
Nemes, a lawyer and Louisville Republican, did not immediately respond to a request for comment.
Critics of the bill said it’s already against the law to make a false report to police or other authorities, and family court judges can already consider such factors when making a custody decision.
“I don’t see the need for this,” said Patricia Walker FitzGerald, a former Jefferson Family Court judge and national consultant on family courts. “It’s already something we can take under consideration, and it might lead to some negative outcomes.”
For example, it might make parents, most often women, fearful of reporting domestic violence or assault if they thought it could be used against them in a custody fight, FitzGerald said.Your stories live here.Fuel your hometown passion and plug into the stories that define it.Create Account
“I just don’t see that it helps and it could potentially hurt, so why go there?” FitzGerald said.
Under Kentucky law, parents are considered to have equal rights to joint custody unless a judge decides otherwise, based on factors such as abuse, domestic violence or other circumstances that would make a parent unsuitable or unsafe.
HB 547 would shift the burden of proof to a parent to prove they should get or keep joint custody or equal parenting time if the judge determines the parent made a false claim of domestic violence or sexual assault.
Family court lawyers say the court is supposed to consider the best interests of the child in making custody decisions.
“Changing custody and time sharing should never be used to punish a parent,” said Natalie Lile, a family lawyer in Frankfort.
Anna Stewart Whites, also a family court lawyer in Frankfort, said the law would have a “chilling effect” on people and deter them from reporting abuse or neglect.
It would be a particular hardship on poor women who “are disadvantaged financially in a divorce and may not have the power to prove their claims of abuse are valid,” she said in an email.
“Nobody wants to put a chilling effect on women who need to report allegations,” she said.
And it’s not just women who make such claims, she said.
“I absolutely have represented men who were filing the abuse charges,” Lile said.
Further, Whites said, judges have ample means to act against someone who does make a false claim in a custody case, including finding them in contempt or court, imposing financial sanctions or other penalties.
Public interest lawyer Rebecca Ballard DiLoreto called the measure a “radical move” based on “a guess about the parent’s motivation” rather than the judge’s duty to act in the best interest of the child.
“Safety and protection are paramount to family court judges,” said DiLoreto, executive director of the Institute for Compassion in Justice.
FitzGerald, who worked for 20 years as a family court judge in Louisville, said HB 547 could further complicate already complicated court battles over custody.
“Rarely are claims of partner violence clear-cut,” FitzGerald said.
“How do you really know if it’s false?” FitzGerald asked. “There are very few cases where it’s just crystal clear. Many of the people who come into court, it’s he said, she said.”
Often, those making the claims, usually women, are poor, may not have a lawyer and don’t know how to present evidence of their allegations, she said.
Under those circumstances, HB 547 could add confusion to the case. If a judge dismisses an allegation as unfounded, FitzGerald wondered if that could establish that it’s false and subject the parent to custody restrictions.
“That’s one of the big questions,” she said. “How do you really know it’s false?”