When Family Law and Criminal Law Intersect
by Shelly Wilbanks
Family and criminal law cases typically follow their own separate parallel paths. However, when they intersect, it complicates both cases and requires attorneys to consider issues that may be outside their preferred focus area or specialization. In family law, this happens primarily when there are allegations of domestic violence and/or child abuse.
When your client is facing allegations of domestic abuse or child abuse, the overlap into the criminal realm creates procedural and legal consequences that you must consider to fully protect and successfully advocate for your client. Following are some issues you should consider when you come to the intersection of criminal and family law. Be sure to look both ways before crossing.
If your client informs you that the opposing party has alleged family violence or child abuse, you must find out whether your client has been formally charged with a crime. If police were called but your client does not know the status of the charges, you can search for the case by client name using the terminals provided at the Frank Crowley courthouse. You can learn what charges, if any, have been filed, whether your client has been indicted, the cause number and the assigned prosecutor.
If charges have been filed, you should recommend that your client retain defense counsel, then work closely with her to plan strategy for any civil hearings. Depending on the potential consequences to your case, it may be in your client’s best interest not to testify. Regardless, your client needs to be fully advised of the impact on the criminal defense when deciding whether to take the stand and may want to have defense counsel present at any civil hearings.
Another reason to work closely with your client’s defense counsel is that she may not realize the impact of a family violence finding on your client’s custody or divorce case. Such a finding precludes a managing conservatorship for the perpetrator, provides grounds for disproportionate division of community property and spousal support prior to 10 years of marriage, and can create standing for a third party to petition for conservatorship. As a result, she may advise your client to plead guilty to “straight” assault—no family violence finding—thinking it would avoid the negative consequences of a family violence conviction. However, such a conviction would have the same effect in the civil case as a family violence conviction if opposing counsel proves the alleged victim’s family relationship.
If the police or the Department of Family and Protective Services have been called, subpoena the police reports, DFPS, and medical records as soon as possible. These can provide excellent impeachment material. When a party has called 911, you must submit a request or subpoena within 30 days of the call to prevent destruction of the recording. You can preserve this evidence by submitting a Freedom of Information Act request online and sending a subpoena for the recording and all records related to the call. Your request must include the name of the caller, the address, the date, and the approximate time of the call.
UnderTexas Code of Criminal Procedure Section 17.292, the magistrate shall issue an Emergency Protective Order (EPO) when a defendant has been charged with a family violence offense that involves serious bodily injury or the use or exhibition of a deadly weapon during the assault. An EPO expires after 30-90 days and does not include a finding of family violence. It may prohibit the respondent from going home, from going near the applicant and children and from possessing firearms and ammunition. Violating an EPO carries the same criminal penalty as violating a temporary ex parte or permanent protective order.
Whether or not formal charges have been filed, when your client has been accused of child abuse, as with domestic violence allegations, it is extremely important to consider the possible criminal consequences should your client testify or make statements to other parties or caseworkers. When such allegations are made, CPS will arrange for a forensic interview of the child. Request a copy of the report and/or send a subpoena, and be prepared for the prosecutor’s attempt to use the report as evidence or have the forensic interviewer testify regarding the child’s statements.
Failure to adequately address the criminal aspects of a civil case can have severe consequences for your client. Winning custody or property for your client means little if the information provided in the civil case contributes to a criminal conviction. Proceed with caution.
Shelly Wilbanks is a family law attorney and former prosecutor. As an associate at Duffee + Eitzen, LLP, she represents clients in all areas of family law. She can be reached at firstname.lastname@example.org.