You’ve heard the horror stories. In a desperate effort to improve her case for custody and to smear you, your ex falsely accuses you of physical and/or emotional abuse toward her and the children. The accusations catch you totally off guard and after denying it, you’re afraid that it comes down to a he said/she said scenario.

Well, mere allegations of abuse are not enough to deprive a parent of physical or legal custody of the children, but you will need to rebut any allegations with rebuttal witnesses and documents and point out why these allegations are just not true, according to domestic relations attorney Jennifer Paine with the law firm Cordell & Cordell, P.C.

Family courts are governed by the standard that everything needs to be in the child’s best interests, Paine said. If you can prove the allegations from your ex are false, that could be extremely damaging to her custody case since she will look like an unreasonable mother bent on keeping you from your children at all costs, according to Paine.

So the allegations may play a part in the analysis, especially if they are documented, but other factors the court will consider include your relationship with your children, your likely relationship with their mother after your divorce, her relationship with you, her relationship with the children, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc.

That raises the issue of when a child can testify and decide which parent they want to live with, but remember that the child’s wishes are usually only one factor that the court uses to determine the best interests of the child. According to Cordell & Cordell, P.C. attorney Erica Christian, a child can generally testify when they are of sufficient maturity to understand and take the oath to testify truthfully.

Usually by 12 years old a child can testify, and by age 15 or 16 if the child is of general maturity and has logical reasons for changing the custody, the court will often abide by the child's wishes, according to Christian.

“As the child gets older, his or her wishes carry more weight,” she said. “The key is that the child has to have a logical reason for changing the present support and placement.”

Defending a bevy of false accusations also costs time and money spent defending yourself.

Of course, if your ex has unlimited financial resources and senses that if she continues to run up the legal fees that you might back off then you can expect that is what she will do, according to Richard Coffee, another Cordell & Cordell family law attorney. 

That’s when it’s important to have a specific legal strategy for dealing with her conduct, including pre-emptive moves and documentation of issues, proposed modifications of prior orders to address abuses, and the possibility of obtaining attorney fees from her, Coffee said.