Carrie Westbrook, Contributing Author
All too often, domestic relations cases take a nasty turn for the worst. It is not uncommon to find yourself facing criminal charges for domestic violence or child abuse in a divorce or custody case.
Unfortunately, false allegations of abuse are an all too frequent tactic utilized in domestic relations cases, particularly when custody is involved. Consulting a criminal attorney is crucial to protecting your legal rights when you are confronted with such issues.
It doesn’t matter if the charges are false
In custody cases, whether allegations of abuse or domestic violence are real or fabricated, the opposing party typically gains a significant strategic advantage over the party accused of abuse. Such allegations generally result in the accused party being forced out of the marital home, which leaves the other parent in the home with sole physical custody of the children and all the property.
In many situations, domestic relations courts tend to keep things status quo during the case to avoid as much turmoil as possible. Accordingly, when a case begins with one spouse being excluded from his home, children and property, he is sometimes stuck in that position for weeks or even months until the issues can be hashed out.
Moreover, when criminal proceedings arise from abuse or domestic violence accusations, it presents even more challenges to your civil domestic relations case. In most jurisdictions, if a party is arrested for abuse, the criminal court typically puts a “no contact” or similar restraining order in place automatically as soon as the accused party is arrested or charged.
Likewise, most jurisdictions allow for civil protection orders to be secured against the party accused of abuse in addition to the criminal no contact or restraining order. Civil protection orders oftentimes prohibit contact of any kind with the opposing party and/or children. This can even include a prohibition against written or verbal contact between the accused party and the other spouse and/or children.
Such orders may exclude you from coming within a certain distance of your home, going to the children’s school or day care, or even so much as speaking on the phone to the children. Additionally, once a criminal order or civil protection order is in place, civil domestic relations courts cannot usually alter them.
This can result in your domestic relations attorney being unable to do anything for you in terms of getting back custody of your children until the criminal issues are first resolved. Accordingly, retaining a criminal attorney immediately is the best course of action.
Testimony in divorce can impact criminal case
The other complication with criminal issues in civil domestic cases arises during litigation of the civil case. When falsely accused of abuse during your civil case, the inclination is to take whatever action is necessary to clear your name, including testifying about the incident(s) that gave rise to the criminal allegations or denying that they occurred at all.
However, testifying about such accusations in your civil case opens you up to potential liability on the criminal side. Anything you say in a judicial proceeding in your civil domestic relations case can be used against you in the criminal matter. While you may assume testifying that you did not commit the criminal act(s) would only help your criminal case, that is not always true.
The prosecutor in your criminal case could use something you said in your civil case to call your creditability into question in the criminal case. You may also inadvertently say or admit to something in the civil case that you think is harmless, but that turns out to be damaging to your criminal case somehow. For these reasons, having a criminal attorney to navigate you through the issues is very important.
Another problem arises pertaining to your right under the Fifth Amendment to the U.S. Constitution to refrain from testifying against yourself. While you can “plead the Fifth” in any proceeding, be it criminal or civil, there are different ramifications for doing so.
By law, pleading the Fifth in a criminal proceeding can never be used against a person accused of a crime. However, in civil cases, most jurisdictions permit the court to infer that you committed the act of which you are accused if you plead the Fifth.
Attorneys working together toward your cause
Because domestic relations cases are civil rather than criminal in nature, the same constitutional protections do not apply. You should therefore always seek consultation from both your civil and criminal attorneys before testifying or otherwise making a statement of record in either case.
Additionally, having a criminal attorney to consult with your domestic relations attorney can result in increased success in both cases. The attorneys can strategize with one another to avoid taking action in one case that somehow detrimentally impacts the other.
Your criminal attorney may also have a greater ability to obtain police reports and other information about your criminal charges that your civil attorney would be otherwise unable to obtain. There are sometimes privileges that police officers and prosecutors can assert to legally withhold evidence from an attorney in a civil case, whereas such privileges are not typically available in criminal cases.
In this manner, while the criminal case and the domestic case are two separate proceedings, you can have your attorneys work together to achieve a common goal.