False Charges of Child Abuse Dog Custody Battles : Justice: Experts say recent changes in the law may have created an atmosphere that encourages officials to believe false accusations.

Joe Martinez and Lisa Munoz were fighting over custody of their 2-year-old daughter, Monique, and it got nasty.

Munoz alleged that Martinez sexually molested the girl.

Within days of the accusation, county officials took Monique away from her father. He had to tell his boss he was being investigated. He gave blood samples and hair samples. He hired lawyers.

There was only one problem with what was happening. The accusation was false. Munoz knew it. Martinez knew it.

To prove his innocence Martinez began taping his private conversations with Munoz.

According to the transcripts of one conversation, Munoz told him, “I know you didn’t do that, Joe.” She said she alleged he had molested Monique because “that’s the only way to get my daughter back.”

Finally, in a hearing last month, after hearing the tapes, San Diego Superior Court Judge Thomas Ashworth returned custody of Monique to her father. He said, “It is hard for me to think of anything that is more irresponsible and hateful than making a false report of this type.”

Yet some experts in the area of child custody say it is increasingly common for false charges to be leveled--to gain a tactical advantage or simply to get even.

“We have a big problem,” said Lee Coleman, a Berkeley psychiatrist and expert in child-custody disputes. “There’s no question there’s been a dramatic rise in these kinds of allegations in the last seven, eight years--maybe tenfold, but nobody knows the precise numbers.”

He said, “It’s an epidemic.”

Although precise statistics are elusive, the general rate of false reports of child abuse is about 8% of all reports, researchers have said. And family law experts believe the false report rate in child custody cases mirrors that rate.

The Martinez case is unusual because the charge was so quickly and clearly proven to be false, experts said.

Designed to protect children, recent changes in the laws may instead have created an atmosphere in which investigators and social workers are inclined to believe a charge of abuse and one in which the accusing parent--typically, a mother--may have nothing to lose by making a false charge, lawyers and psychiatrists said.

“The system has clearly overreacted,” said Michael McGlinn, a San Diego lawyer and expert in child-abuse laws.

“Nobody’s saying molestation is not a problem,” said one of Martinez’s lawyers, Jim Veltman of San Diego. “You’ve got to exercise caution. It’s where to strike the balance.”

Investigators and social workers maintain that they strike the appropriate balance, because they are neutral and unbiased reporters searching for facts.

But Martinez said sheriff’s department and social service investigators seemed more interested in proving his guilt than finding the truth, asking him leading questions and suggesting he was dangerous.

Though Munoz eventually lost the custody battle, she did not have legal custody of Monique at the start, so she risked nothing, Martinez said.

Since Munoz did not lie under oath, she is not subject to a criminal contempt proceeding, lawyers said. And Martinez said he does not want to press charges--for instance, extortion--against her.

Even if the allegation of abuse is unsupported, as it was in Martinez’s case, it leaves the accused parent--usually, the father--in legal limbo, with sharply circumscribed legal rights and in the difficult position of refuting an untruth, lawyers and judges said.

Without clear medical evidence of abuse, it is virtually impossible to prove the truth or falsity of a claim of abuse, experts said. Instead, it becomes a judge’s call, based on the credibility of the mother or father, experts said.

Martinez said a Family Court counselor told him he was the first father the staffer had ever seen vindicated in 10 years. The problem is that even his exoneration took something as dramatic as a tape-recorded admission, experts said.

Robert Fellmeth, executive director of the Children’s Advocacy Institute at the University of San Diego, a project of the Center for Public Interest Law, which he also directs, said false claims “undermine the critical credibility of legitimate claims.”

“I’m afraid that the credibility undermined by a small number, even a very small number, of false accusations, results in a very high price that we’re all going to have to pay,” he said.

“For every one that is fabricated, 99 may be telling the truth,” Fellmeth said. “But who to believe? That’s what hurts.”

In a 1987 law journal article, Santa Clara County Judge Leonard P. Edwards said that about 2% to 10% of all Family Court cases surrounding custody or visitation disputes involve a charge of sexual abuse.

In San Diego County Family Court last year, there were 254 cases involving allegations of suspected abuse among about 6,000 cases total, or a rate of 4%, said Murray Bloom, director of Family Court Services, which mediates and investigates custody matters.

Bloom said there are no statistics for the number of false or unsubstantiated claims in the San Diego court because that would involve a determination--true or false--in each case. Many cases don’t reach a clear determination, he said.

Hard numbers are not available elsewhere, either, but lawyers, judges and psychiatrists said repeatedly that they believe the number of false and questionable claims of abuse in Family Court custody disputes is on the rise. The court is a branch of Superior Court that handles issues relating to the care, custody and control of children.

What experts do know is that, because of new laws and increased public awareness of child abuse, an entire industry--doctors, therapists, investigators--has been created in California since the Legislature issued a clear directive in 1980 to halt child abuse.

That year, the Legislature passed a mandatory reporting law, since strengthened several times by subsequent bills, that expands the class of persons who must report suspected abuse and establishes serious penalties for failure to report.

The result: In 1987, more than 370,000 reports of child maltreatment were made to child protective services around the state, according to the San Diego-based Children’s Advocacy Institute. That number was up 404% from 1982, it said.

To maintain that kind of growth, critics said, it’s in the self-interest of the industry to believe each and every claim.

“There’s a whole industry now, treating and caring for these kinds of problems,” McGlinn said. “We do have a problem, there is abuse going on, and it’s terrible and it shouldn’t go on. But I think everybody has to be very, very careful in cases where there’s really a question of what happened. Because a lot of lives are being ruined.”

Another change in the state’s laws may be contributing to the perceived increase in false claims in child-custody cases in court.

It used to be that there was what was called the “tender years” presumption in custody battles. That rule ordered a judge to presume that custody of a child would go to the mother unless the father could show in court that he was a better parent.

A revision made the law neutral--now neither parent begins the custody fight in court with a legal advantage.

With the presumption, women typically had a “bargaining chip,” custody and visitation rights, to trade with men, who typically had greater financial assets, said Robert Goldstein, a UCLA law professor and expert on family law.

Without this bargaining chip, some women succumb to the pressure by making false charges, Goldstein suggested.

“Where once (women) could count on getting custody, they’re now in a position of having to share custody,” he said. “It’s not surprising that you start finding these sort of (false) allegations.”

In a telephone interview, Munoz said the molestation accusation was false. She said she hoped the accusation might gain her a tactical advantage in the custody dispute.

“I knew it was wrong,” she said. “I did it, but, after I did it, I really regretted it.”

Veltman, one of Martinez’s lawyers in the custody dispute, said the dilemma facing a judge is that, presented with an accusation of abuse, no judge, even a skeptical one, “wants to be the one who says, ‘There’s not enough proof here.’ Then, the next day that father molests a kid, and the judge had let him go.”

Veltman said he even looked suspiciously at Martinez. “I looked at the client cockeyed a couple times. You don’t want to be an attorney advocating for a scumbag. But we decided he was a square guy.”

Martinez, 27, and Munoz, 22, grew up and went to high school together in Brawley, in Imperial County. When she became pregnant, they moved in together in San Diego, where Martinez was attending San Diego State University. They never married.

Monique was born in August, 1988, a few months after Martinez earned his bachelor’s degree in criminal justice. That same month, he received his commission in the Army Reserve.

In May, 1989, Monique and Martinez split up.

Martinez filed for legal custody of Monique. He was granted custody by default on June 13, 1989, when Munoz failed to show at a hearing.

In court papers, Munoz said she did not appear because she was unable to afford a lawyer, was overwhelmed by the court procedure and was intimidated by Martinez.

Later that summer, the two reconciled and Munoz moved back in with Martinez. He obtained a job as an investigator with the newly formed county public defender’s office. Munoz did not work outside the home.

Meanwhile, Martinez hired a baby-sitter to help care for the baby. The sitter has continued to care for Monique on and off since June, 1989, according to court records.

On Aug. 11, 1990, Munoz said she left the house, without the baby, because Martinez had been “aggressively dominating me,” court records show. He said he took her to Brawley, but she returned to El Cajon and moved in with a neighbor.

On Aug. 29, she went to court. She had hired a lawyer--from the law firm of Jacoby & Meyers--and asked that the June, 1989, court order awarding Martinez custody of Monique be changed. She also asked for child support and attorney’s fees.

Munoz also charged that she had seen Martinez “hit and shake Monique.” He called that accusation “totally false” in court papers. The baby-sitter would tell a Family Court counselor that she never saw any bruises or scratches on the baby.

Attorneys at the Jacoby & Meyers firm declined to discuss the case.

On Aug. 31, Ashworth, the San Diego Superior Court judge, ordered that the two share custody. Pending meetings with a Family Court counselor and a hearing Sept. 11, Martinez was to have custody of Monique on the weekends and Munoz during the week, he ruled.

“She just had to say that, allege that abuse occurred. She didn’t even have to present any evidence, and the judge immediately gave her shared custody,” Martinez said.

On Sept. 7, the court counselor recommended, after interviewing both parents, that it was in Monique’s best interests to live with her father.

The next day, a Saturday, Munoz called the Sheriff’s Department and claimed that Martinez had sexually molested the girl.

“What happened was my attorney served him with some papers, we went and talked to the counselor, and I guess the counselor was more for his side, I guess,” Munoz said. “I was afraid that I wasn’t going to get custody because my daughter means everything to me.

“So I had to do what I had to do.”

On Sept. 10, the following Monday, the Family Court counselor changed his recommendation, saying that Monique should stay with Munoz, and that Martinez should have no contact with the girl.

Over the next few days, Martinez was contacted by Fran Atwood, a social worker with Child Protective Services, a division of the county’s Department of Social Services.

Atwood wanted to “set up an interview to see how much of a danger I would be to my daughter, not whether it was true or not,” Martinez said.

Atwood declined to comment. But Carol Baenziger, a department spokeswoman, said, “We don’t assume anyone’s guilt or innocence. We are neutral, and we remain unbiased until all the facts are gathered.”

Ken Williams, a sheriff’s investigator, also contacted Martinez. “I thought he was trying to get to me, to say even normal people have this problem with children at times, that stress can lead normal people to do these things,” Martinez said.

Williams denied any impropriety. He said, “There was no preconceived idea of guilt or innocence.”

A doctor examined Monique and reported that it could not be proven that she had been molested nor could it be ruled out, according to court papers.

“A diaper rash turned into, ‘Maybe she was, maybe she wasn’t,’ ” Martinez said. “It was like, ‘Come on, you can tell a diaper rash from another kind of rash you’re looking for.’ ”

An adult’s hair was found in Monique’s diaper, so, on the advice of attorney Dan Larkin, who was preparing Martinez for the possibility of criminal charges, he gave blood, hair and saliva samples to investigators.

On Sept. 11, Martinez and Munoz met. He recorded the meeting and told her it was being recorded, which she acknowledged. Still, she admitted lying about the molestation claim.

A few days earlier, on Sept. 5, she acknowledged in another tape-recorded conversation that she had made up the story about Martinez hitting Monique.

“You’d better agree on something,” she said, according to the transcript. “I don’t want to see you go to jail, I want your money.”

Martinez said he had decided to tape their meetings because of his experience as an investigator. “I was preparing myself for these charges,” he said.

Larkin, the lawyer, gave Williams, the Sheriff’s Department investigator, the transcripts. Williams confronted Munoz, and she confessed that she had made up the charge, Larkin said.

On Sept. 19, Ashworth awarded sole physical custody of Monique to her father.

“I don’t think I can easily think of anything that you can do that is much worse to a child and to the other parent than make a false allegation of this type,” he said. “It starts too many things in motion that are somewhat knee-jerk reactions.”

Martinez said he considered filing criminal charges against Munoz, but recently decided he would not. “Why start this whole scenario all over again?” he said.

He said, “I’m not saying (sexual molestation) never happens, because it probably does. I’m just saying, ‘Be more careful. And think about the father every now and then.’ ”

He also said he hopes mother and daughter can be reunited. “I don’t want to keep my daughter from knowing her mom.”

Munoz, however, said she isn’t ready to see Monique.

“To tell you the truth, I told Joe I didn’t want to see her until I got over all this,” she said. “It caused a lot of stress on me. I told him I didn’t want to see her until I got over all this because I would see her for a day or two, and he would take her away, and that’s the most pain, saying goodby to her.”