The West Virginia state legislature has passed an important bill that will reduce false allegations of child abuse and neglect, domestic violence, and parental interference. Men and Women Against Discrimination (MAWAD) led the lobbying to get this passed.

Bill 3065 is perhaps the first of its kind — a massive improvement over prior “wild west” family law where accusers run the place armed with figural bullets.

Courts will be able to grant compensatory parenting time and even reverse primary custody in cases where a parent has a history of making false allegations of child abuse, neglect, domestic violence, and in doing so interferes with the parenting time of the accused parent.

There is still room for improvement. The burden of proof for demonstrating that an allegation was false is still rather high, and the misdemeanor penalty rather low. A three-part test was created, requiring proof of all three elements.

1. The allegor must have made an allegation of child physical abuse, neglect, or sexual abuse, and
2. the prosecutor must prove that the person knew that that an allegation was false at the time the allegation was made, and
3. the prosecutor must prove that the allegation was made to influence a custody proceeding.

Elements two and three are not mutually exclusive: for example, if a person says “if you don’t do what I want then I will make an allegation of child abuse”, proof of number three has been made. But then, you have to prove that, at the time of making the allegation, the person actually knew it was a false allegation. All a person probably has to do is to spout one reason (any reason verifiable or not) why they thought it was true to get off the charges.

In other words, the merits that go to element three may not necessarily transfer to proving element two, despite the fact that a confessorial statement going towards element 3 does in fact also go towards showing that the allegation was not founded on truthful belief.

Such is the problem with “state of mind” standards that are not attached in any way to objective standards of proof.

Use of the word “fraudulent” in the legislation may open doors for consideration of the rather large gray area between proving abuse happened and proving the allegation was false.

A fourth compound element would tighten up the legislation next year.  An “or” covering allegations of child abuse or neglect by a party who may have an interest in the outcome of a custody decision, who has made allegations so unfounded as to create a presumption beyond reasonable doubt that the allegations are not true should be found guilty.  For the purposes of a civil action, preponderance of evidence should apply in this balancing test.

One other place where there is room for improvement: investigations are done solely by the Department of Health and Human Resources — who are not versed on legal standards and tend to make subjective decisions lacking basis for the decision. Police should be involved in any investigation — the social workers ask the questions at interviews, and the police decide whether or not an arrestable offense has been committed.

West Virginia is definitely headed in the right direction. Next year, it should expand what it started and ensure that allegors and alleged perptrators have equal rights and protections under the law. Any other arrangement is abuse by fiat. My hat is off to those who helped bring about this major improvement in West Virginia statute.

Those who are interested may attend the signing of this bill by Governor Joe Manchin on Thursday, April 3 at 4:00 pm in the reception area of the Capitol building in Charleston.