CPS Involvement with Married Couples and Common Questions

Suppose that three years ago a wife obtained an Ex Parte OFP (order for protection) which alleged that the husband physically abused her; the parties were separated for one week and then reconciled. The husband works from home and cares for the children. The wife commutes 50 miles to her job in the city. The wife tells her therapist and her sister that she is afraid to leave the children alone with her husband due to his drinking. She reports that he recently fell down the stairs while carrying their toddler. The toddler was injured and required treatment in the emergency room.

A family assessment is commenced. The track switched to a traditional investigation after the father refused to cooperate and the social worker learns about the prior allegations of domestic abuse. A determination of maltreatment against the father is made. The social worker suggests that the mother separate or divorce husband if she wants to keep the children out of foster care.

What should the married couple do if one parent is the target of the child protection investigation but not the other?

  1. It is best practice for each person to have separate legal counsel
  2. The course of action will depend on the specific allegations and the goals of the individual client

What about marital privilege?

  1. There are two different types of marital privilege
    1. Privilege to one spouse from testifying  against the other during their marriage
    2. Privilege to prevent one spouse from testifying at any time, during the marriage or after, concerning confidential interspousal communications during the marriage
      1. However, “communication” as it is used in this context applies only to “assertive conduct” including spoken words, acts, and gestures intended by one spouse to convey a meaning or message to the other.
  2. Marital privilege does not apply to proceedings arising out of sexual abuse of a child by the person responsible for, or in position of authority over the child.