Monday, September 5, 2011

Criminal and Family Law


In most criminal cases, the attorney is free to focus solely on the issues pertaining to the criminal prosecution of a client and implementing mechanisms to address those limited issues.  While this is the typical scenario, sometimes the world of civil law interferes with the handling of a criminal case.  This can happen when there is a motor vehicle accident, a deprivation proceeding, or even a business dispute.

However, I have found that the primary type of civil action that can significantly impact a criminal case is a family law matter involving a divorce or child custody issues.  In divorce and custody cases, the parties are put into positions where their property and/or children may be taken away.  For many people, these are the two most important things in life.  Therefore, drastic measures are often taken in family law cases.  Desperate people do desperate things.

I do want to add that many criminal cases arising out of a family law situation have merit and should be prosecuted.  There are numerous cases in our community where a spouse has committed a crime and should be punished, However, you may be surprised to learn that spouses also create criminal matters involving the other spouse in order to gain an advantage in a civil matter. Unfortunately, this happens all the time. 

The most common case of alleged criminal conduct in family law cases is in the area of domestic violence.  One party claims that the other party hit them, hit the children, or is doing something violent in the home.  Again, there are many cases where domestic violence is raging within a household.  But, in some cases that have a companion civil case, you will find that the allegations are false.  Most prosecutors take the civil case into consideration when evaluating the criminal case.

False allegations of drug use, alcohol abuse, and a wide variety of criminal activities are also common in family law cases.

The worst situation that I have ever encountered is when a spouse alleges that the other spouse is molesting one of the children.  Unfortunately, children are molested in Georgia and often by members of the family.  In these cases, the molester should be vigorously prosecuted if there is strong evidence to support the allegation.  But, there are also many people who are falsely accused of this egregious act.  Oftentimes, this happens in a divorce or family law case.  If the judge believes that one spouse is a child molester, the accusing party will typically receive anything that is asked for in the case.  If the accusing spouse is providing false information to law enforcement, it can ruin a life. 

Whatever the charge may be, it is important for the criminal defense lawyer and the family lawyer to be on the same page during the pendency of the cases.  I typically ask the family attorney to notify me when a civil hearing is set in their case.  This is because I need to be aware of who is planning to testify.  Most of the time, particularly in felony cases, I do not want for my criminal client to testify in a civil case.  This is because the client’s testimony can be used at the criminal trial.  Effective cross-examination at the civil hearing can be very damaging to the criminal case.

Likewise, the family law attorney wants to know how the client is proceeding with the criminal case.  Motions, pleas, and dispositions in the criminal case can all have a significant impact on the divorce or custody case.  The last thing that the civil attorney wants to hear is that your client entered a guilty plea to something before going to divorce court.  The attorneys really need to be on the same page and able to work with one another.

Its interesting how these cases can be so intertwined.  Its also important to appreciate how one case affects the other.  Communication between the client and the attorneys is key. 


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