DeSantis v. Pegues

Spouses Anna DeSantis (defendant) and John Pegues (plaintiff) had an adopted daughter. Pegues and the daughter regularly engaged in physical play involving tickling, belly kisses, face kisses, and climbing on Pegues. As the daughter grew older, DeSantis became concerned that such interactions were inappropriate. Shortly before the spouses separated, Pegues began drinking heavily, and DeSantis regularly found him sleeping in the daughter’s room, once with his hand on the daughter’s bare bottom. After the separation, the daughter continued to live with DeSantis, and Pegues moved into a condominium. The spouses developed an informal visitation schedule for Pegues to see the daughter, although there were no overnight visits because of DeSantis’s concerns about Pegues’s drinking. The daughter referred to her room in Pegues’s condominium as the secret closet and told DeSantis that she and Pegues played kissing and tickling games there, including a game that involved both parties removing their clothes. DeSantis reported Pegues to New York State Child Protective Services, which investigated. The daughter did not report any instances of sexual assault to investigators. However, a social worker hired by DeSantis claimed that the daughter disclosed sexual abuse during their first clinical session. Pegues was charged with felony aggravated sexual assault. While the charge was pending, Pegues voluntarily consented to an interim suspension order that precluded contact with the daughter. Eighteen months later, the state dismissed the charge against Pegues, prompting him to file a motion to dissolve the interim suspension order and reestablish visitation. The family court concluded that the evidence did not support a finding of sexual abuse under the clear-and-convincing-evidence standard but did support a finding of sexual abuse under the lower preponderance-of-the-evidence standard. The court therefore denied Pegues’s motion, stating that visitation would be against the daughter’s best interests at that time. Pegues appealed.