Jacqueline Newman - New York City Divorce Lawyer

Originally Published by Maria Puente and Lorena Blas on USA Today, Sep 23, 2016

Suppose you are divorcing and seeking sole custody of your kids. Now suppose your spouse is accused of child abuse. Who do you think is in the better negotiating position when the divorce lawyers sit down to dicker?

Even non-lawyers can see the answer is obvious. This hypothetical situation may not be so hypothetical in the increasingly poisonous pending divorce of Hollywood icons Angelina Jolie and Brad Pitt.

“For a very sexy couple, I think that this is going to be a very unsexy divorce,” says family-law attorney Jacqueline Newman, partner at Berkman Bottger Newman & Schein in New York. “I think that these people are really going to absolutely settle outside of court. I think that they’re going to get into a room together and figure it out.”

So far, that’s not happening.

What’s the latest bombshell?

Early Thursday, TMZ landed a story asserting that Pitt, 52, is “under investigation” by authorities in Los Angeles for allegedly getting verbally and physically abusive with his children while in the air on a private plane, and continuing on the tarmac after landing at an airport in Minnesota on Sept. 14.

The timing of the incident has caused speculation that it precipitated the couple’s separation the next day and her filing for divorce on Monday, in which she took the relatively rare step seeking sole physical custody of their six kids under 15.

Jolie has not commented.

A source close to Pitt, who was not authorized to speak publicly, told USA TODAY that Pitt is taking this matter “very seriously and is fully cooperating. The claims are greatly exaggerated or fabricated. But he’ll always do whatever is best for his kids. Despite being on the receiving end of an onslaught of allegations, he remains focused on doing whatever is best for the children.”

What do the authorities say?

USA TODAY, People and other media outlets confirmed portions of the TMZ story with unnamed sources. But the Los Angeles Police Department denied it was investigating. And under California law, the Los Angeles County Department of Children and Family Services cannot confirm or deny anything.

“LAPD is not handling any report or allegations into child abuse against Brad Pitt,” public information Officer Jenny Houser told USA TODAY.

“The law does not allow us to confirm or deny the subjects or content of our investigations,” children’s services spokesman Armand Montiel told USA TODAY in an email.

Belatedly, TMZ updated its story to say the accusations were referred to the FBI because they allegedly took place in the air while the family was flying from France to the U.S.

“The FBI is continuing to gather facts and will evaluate whether an investigation at the federal level will be pursued,” FBI spokeswoman Laura Eimiller said in a statement emailed to USA TODAY.

How are child abuse investigations handled in custody disputes in California?

How would such an investigation proceed? What could be the consequences? And what effect would it have on custody questions in a Brangelina divorce?

Under the usual procedures, divorce lawyer Neena Tankha in New York says, an allegation made to the Department of Children and Family Services would result in a case worker being assigned to investigate. If that investigation finds evidence of abuse, it would be relevant in a custody case.

“(An investigation) almost always involves meeting with the accused parent, meeting with the child and meeting with any witnesses who were present during the incident,” Tankha says. “From there, the case worker will prepare a report of his/her findings. In the event Angelina continues to pursue litigation to gain custody of the children, the case worker’s report will surely come into play.”

Such investigations could take weeks or months to sort out, adds San Francisco divorce lawyer Monica Mazzei Potter, who used to practice in Los Angeles. Meanwhile, the accused spouse might lose contact with the kids, she says.

“More than 50% of the time, judges will suspend contact with the kids or order supervised visits until they get to the bottom (of allegations),” she says.

An investigation could lead to criminal charges, Tankha says, but probably won’t.

“In order to rise to the level of criminal consequences, the incident would have to be severe, and a prosecutor would have to feel there is enough evidence to bring criminal charges,” she says.

What happens if the accusations are untrue?

It still puts the accused spouse in a weaker position regarding divorce and custody, says Potter,

“Any person going up against false allegations of abuse, even though you’re supposed to be innocent until proven guilty, you have an uphill battle of presenting evidence that it’s not true, so yes he’s in a weaker position,” Potter says.

If there’s been some fabrication or exaggeration (TMZ reported the accusations against Pitt came from an anonymous caller who supposedly witnessed him on the airport tarmac), the DCFS investigation would find that, says Tankha, and it could be relevant.

“The courts seriously look down upon a parent who takes these types of desperate measures to alienate the other parent from the children,” Tankha says.

Are such accusations common in divorce and custody cases?

Yes, says Potter, even though it’s not uncommon the allegations are false. But they still have to be investigated.

“It is not uncommon to have child abuse reports at the time of divorce or separation,” says Sheila Boxley, CEO of the California-based Child Abuse Prevention Center. “Those are always things that get looked at very carefully because of that.”

There’s a difference between verbal abuse and scolding children, Boxley says: The former has a legal definition under California law and the latter doesn’t.

“Positive discipline or corrective action, those are certainly not verbal abuse,” she says. “Abuse is when it’s demeaning, when it is unwarranted, when there’s another aspect to it. … Physical abuse is a lot easier (to determine) because you can have forensic evidence. It’s very hard to investigate verbal abuse by itself, particularly in young children, because their ability to effectively communicate about that is somewhat limited.”

What effect could all this have on the children?

Protecting the children from further trauma should be the goal, says child psychiatrist Mark Banschick, retired expert witness in child custody disputes and author of The Intelligent Divorce books. He called on the media to be careful.

“The No. 1 thing is to protect the innocence of children,” Banschick says. “They can be traumatized by something that happened but they can also be traumatized by the public humiliation that the family can experience by this exposure. The news media should really handle this in a way that respects the children. … They deserve their privacy even if their parents are famous.”

What if Pitt, who denies the accusations, seeks treatment?

“It definitely helps,” Newman says. “If ultimately there is a finding that he is abusive, he’s definitely going to have to seek treatment, whether it’s anger management, whether it’s parenting classes or whatever. If in fact there is any kind of alcohol or drug situation, he’s going to have to take care of that. He’s got to put himself into a fit place to be able to care for his children.”