FAQ: Can you sue for false reporting of child abuse?
Answer: Yes you can sue for bad faith or malicious reports of child abuse but it will not be easy and there are critical deadlines that must not be missed.
Qualified Immunity for Reporting of Child Abuse
Bringing a lawsuit for deliberately false reporting of child abuse is not easy. The person that makes the report is presumed to be acting in good faith. A finding of good faith will defeat a lawsuit for bad faith or malicious reporting of child abuse. Immunity is not available for persons making bad faith or malicious allegations of child abuse.
Possible Claims for False Reports of Child Abuse
There are a number of possible legal claims for such deliberately false reports of child abuse. Although there are several possible claims that might be made, not all of them have the same chance of recovering for the harm they caused. The issue as in almost all personal injury type cases, including something like this, is the availability of insurance. The way the claims are framed can determine the availability of insurance. The two that we will focus on here are defamation and intentional infliction of emotional distress. For one there is insurance and for the other there is a good chance there is not.
Defamation of Character
The best way to approach a lawsuit for bad faith or malicious reporting of child abuse is through a defamation lawsuit. Many people know the term slander but not defamation. Slander falls under defamation under New Mexico law. As such slanderous false allegations of child abuse would be brought as defamation, not slander, in a lawsuit.
However you slice it, New Mexico most definitely recognizes civil claims/lawsuits for defamation. There are a number of criteria for filing a defamation claim which will be addressed below, the most obvious of which is that the report was made in bad faith or with malice.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED) is also a possible claim for deliberately false reporting of child abuse. IIED can carry extraorindary mental anguish and can result in big jury verdicts if it the case goes to trial. However, the “intentional” part of the equation here can cause problems for recovery for the harm done. In short, there are cases that have found that there is no insurance for intentional acts which would include “intentional infliction of emotional distress”.
Defamation is Covered by Homeowners Insurance
Interestingly and somewhat surprisingly, homeowners insurance policies have been found time and time again to cover cases of defamation even though the actions are arguably, and insurance companies do argue, intentional. This means that if the person or persons making the bad faith/malicious allegations has homeowners insurance, then assuming that you can prove the necessary elements of defamation set forth below, there will be insurance coverage. Thus the best and safest claim to bring for false allegations against you for child abuse is defamation.
Basic Requirements of Defamation for False Reporting of Child Abuse
There are numerous requirements for a defamation claim. It boils down to:
Because there is a presumption of good faith, the hurdle is even higher for reporting of child abuse. At a minimum, this requires that there be no finding by a court, criminal or civil, that the accused person did commit child abuse. Because there is a good faith presumption that the person making the allegations thought there was child abuse, a court finding of any kind would support the presumption and make pursuing a defamation claim extremely difficult if possible at all.
- the statements must be false,
- the person making statements knew they were false, and
- the reputation of the person against whom the false allegations were made has been harmed.
In the case of bad faith or malicious reporting of child abuse, the difficult part is proving the defendant (the person making the false allegations of child abuse) knew the allegations to be false. This is not necessarily an easy hurdle to get over.
Contact Collins & Collins, P.C. for a Free Review of Your Case
If you have been falsely accused of child abuse and
- there has been no finding of abuse by a court,
- you have evidence that the allegations were made in bad faith or with malice, and
- the defendant has homeowners insurance,
you should contact an experienced attorney right away. There is a 3 year statute of limitations on personal injury claims including defamation against private parties such as an ex spouse. The statute of limitations is only 2 years on claims against governmental agencies like Children Youth and Families or their staff. In addition, there is a 90 day Tort Claims Notice requirement that if missed will bar your claims against CYFD. It is important not to delay.
Collins & Collins, P.C. can be contacted at 505.242.5958 or using the online form. We will be happy to review your case to help determine if you do have legal claims against the person or persons making deliberately false reports of child abuse against you.