This story was originally published in Texas Lawyer.
Sudden tragedy in a high-conflict family matter is the nightmare scenario for both attorneys and judges when criminal law and family law interact in Texas.
In 2001, for example, a Dallas man shot and killed his two little girls while their mother listened on the telephone. It was an evil act of revenge against his ex-wife carried out during scheduled custody with his children. John Battaglia is now in a well-deserved cell on death row for this horrific crime.
Few cases represent a more complete breakdown of the legal system, but many interactions between criminal law and family law feature people operating in an aberrant manner. The two practice areas address the needs of society in very different ways.
Criminal law is designed to identify and punish wrongdoers for past behavior. Family law is much more forward-looking, using past behavior as a guide to how litigants can help them-selves and their families operate more productively in the future. A dependable, well-meaning parent before the divorce is likely to behave that way after the divorce unless circumstances change. It doesn’t always work out that way, but that’s the theory.
Because the criminal courts can incarcerate defendants or otherwise punish them, there are many more legal safeguards than in family law. Those include having to prove guilt beyond a reasonable doubt, the absolute right to a jury trial, the presumption of innocence, the right to counsel, constitutional protections against unreasonable searches and seizures, and the Fifth Amendment protections against self-incrimination.
Family law cases are proven by a lesser standard, a preponderance of the evidence. Parties have the right to hire the best counsel they can afford but are not entitled to counsel at all, and most family law matters are heard before a judge. While litigants can’t be sent to prison for bad parenting unless that behavior violates criminal law, access to their children can be denied or restricted based upon what is in the best interest of the children—a finding that is undefined and frequently varies from one court to the next.
Certain crimes can become central elements in a family law case, such as domestic violence, child sexual abuse, interference with a child custody order or child kidnapping. Other severe problems may lead to criminal acts that adversely affect the family—substance abuse, mental illness and driving while intoxicated. DWI can be both a personal issue that affects a family (for example, if children are in the car when the DWI takes place) and a crime.
The litigants in family law cases often try to allege criminal misconduct by the opposing party. Without solid evidence, the finder of fact may have no basis to believe the allegation, but a “guilty” in criminal court will go a long way to rebut claims by a party that he or she has led a squeaky-clean life.
While family court judges do their best to make decisions fairly, they are often operating at a disadvantage. A family law litigant can’t fully defend himself in family court if he has a pending criminal case that hasn’t been litigated in the criminal courts. In this instance, the judge won’t know all of the facts. Perhaps the litigant will eventually be found not guilty, but that may not happen for years. The judge has to proceed knowing that the person is accused of the crime and make a decision about what is best for the child even when the criminal case has not been proven.
Because these cases can be exceedingly complex, few family law attorneys take cases with contemporaneous criminal cases. There can be a great deal of confusion over the issuance of orders that often conflict. For instance, does the client follow a protective order issued by a criminal court which restrains him from contacting his ex or a co-parenting schedule approved by the family court that allows such contact?
Then there is the problem of access to family funds by a criminal defendant. When a criminal case and a marital dissolution case are being litigated simultaneously, conflict arises when the divorcing party/criminal defendant tries to take money from the marital estate to pay for his defense.
The battle lines are drawn even more sharply when the spouse or the children are victims of that crime. In this instance, two basic rights stand in opposition to each other. On the criminal side, the defendant has the right to engage his counsel of choice, in hopes of securing zealous representation and a fair trial. In family law, the division of assets is basic to marital dissolution. Should the funds be available for this divorce process or used in the criminal defense of one of the parties?
While criminal law and family law often interact and collide, lawyers and the courts in Texas attempt to administer justice in a way that minimizes the amount of collateral damage. As in many sad cases that have made headlines over past decades, we are not always successful.