State v. Boston

H. Brown, J.,

concurring. I write separately in this case to address a problem that arises when there are accusations of sexual abuse against a parent who is embroiled in a custody fight for the child.18

In this case, the defendant requested permission to have his expert examine the child. The court denied the request. Thus, the defense was *130forced to rely on the statements and opinions of experts chosen by the custodial parent. In a case like this one, in which there was a custody battle raging when the accusation was made, there is always the underlying suspicion that the accusation was linked to the custody dispute.19

In such situations, a rule should be adopted, I believe, which would allow another expert, not hired by the accusing parent, to examine the child. At the same time, the court must be free to fashion an order which will protect the child from obtrusive questioning. The court-appointed expert would examine the child and submit a report to the judge who would make the report available to counsel for both the state and the defendant.

I strongly endorse the majority in its determination to have the Ohio Supreme Court Rules Advisory Committee and the General Assembly review the problems associated with adjudication of child abuse cases. Put simply, the legal system is failing to (1) accommodate the child witness in the court room and (2) separate the reliable from the false with respect to sex-abuse allegations. Rules and special procedures are needed, and should evolve from a study of the problems. They cannot be hastily formulated in a legal opinion.

The failure of the judicial system to deal with child abuse cases has reached the point of crisis. A thorough and careful consideration of procedural and evidentiary rule changes should be promptly undertaken.

Moyer, C.J., concurs in the foregoing opinion.

In one study, it was found that forty-one percent of the cases involving sexual abuse arose in divorce and custody cases. Wakefield & Underwager, Accusations of Child Sexual Abuse (Charles C. Thomas 1988) 294.

In this regard, see R.C. 2151.421(G) and Hartley v. Hartley (1988), 42 Ohio App. 3d 160, 537 N.E. 2d 706.