Often in a divorce or child custody matter, one side or the other raises allegations of criminal child abuse. Whether you are representing the accuser or the defendant, these allegations should raise a red flag. The first question to ask is, “on which side of the law is my client?”
Representing the accuser. Unless the client is facing an emergency situation that requires calling 911, encourage your client to speak with you before contacting police. Unnecessary criminal charges filed in a divorce can cost both parties when funds are limited and held in joint accounts.
Know the law before speaking with police. Encourage your client to think first before speaking. There are many scenarios under which a person is required to report suspected crimes to authorities. A delayed report may be a crime in and of itself. One of these areas is mandatory reporting of suspected child physical or sexual abuse. In general, in many jurisdictions, the law requires an adult with knowledge of suspected child abuse to report it to law enforcement or child protective services without delay. Elsewhere, mandatory reporting laws are not as strict. In many jurisdictions, failure to report suspected abuse is a crime for which there is no exception under spousal privilege.
Research the law of your jurisdiction on the amount of time a parent has to report suspected abuse, the ages of children for which there is a mandatory reporting requirement, and agencies to which a report may be made.
When making a criminal accusation against an opposing party in a family law case, often the accuser will forget or underestimate his or her own role in the alleged crimes. For example, when one party alleges that the other engaged in selling illegal drugs, his or her own actions may suggest direct participation and thus equal culpability. Even if not criminally responsible as a full participant, your client may be guilty under the law of facilitation or accessory of the crime, or even misprision of a felony, all of which may be felonies.
A parent who reports criminal behavior to authorities may be subject to criminal prosecutions for child endangerment, reckless endangerment, or failure to protect.
Using criminal charges to your advantage. It is unethical under the ABA Model Rules of Professional Conduct to use or threaten to use criminal charges to gain an advantage in a civil proceeding. But, if criminal charges are reasonable and not brought for the sole purpose of gaining an advantage in a civil case, they can be useful in your family law case.
When domestic violence or child abuse charges are pending, courts often have standing to issue restraining and no-contact orders. Get a copy of the court’s standard bond restrictions and obligations and any additional, special conditions from the court clerk’s office.
Use information and materials from the criminal case to further your civil matter goals. Always get a copy of the booking photo. Use these photos to show the court or jury another side of the defendant. Get copies of 911 telephone calls. Check the criminal courts’ file for copies of arrest warrants, affidavits, police reports, or discovery pleadings. Also look for preliminary hearing tapes, transcripts from bond hearings, suppression hearings, or guilty pleas.
Child protective service matters can be another great source of discovery and information. Get copies of the social worker’s file, including all reports and statements of the opposing party. Ask for copies of these or subpoena records to court. Get copies of medical records or hospital reports documenting possible abuse.
When your client is accused of criminal wrongdoing. It is increasingly common for a party in civil divorce matters to make allegations that the other party has committed a crime of some type, whether domestic violence, child physical abuse, or child sexual abuse. If your client is accused of child physical or sexual abuse, put the domestic case on hold. These types of allegations are very serious, and a conviction will permanently affect your client.
The number-one rule: Do not allow your client to speak with anyone regarding any allegations until you do your research. And, yes, these instructions apply to the innocent client as well as the guilty. It is important to determine what possible charges your client could face if allegations were to be proved. Go straight to the code. Depending on the age of the child, simple neglectful or reckless acts might constitute the most serious of felonies. When reviewing criminal law, another good resource is the state (or federal) pattern jury instructions. These instructions boil down complicated statutes into simple, direct outlines of what constitutes a crime.
When advising your client not to speak directly with the police or investigators, remember these points. The law allows a citizen to exercise the Fifth Amendment right to remain silent if one of the possible answers to a question would implicate the citizen in a crime. The right to remain silent does not require a person to be guilty of the crime. Never allow your client to be alone with investigators from Child Protective Services (CPS) or law enforcement.
Always ask as many people as possible about facts surrounding the accusations. When speaking with police, begin the conversation by saying, “I cannot correctly advise my client about what to do if I do not understand the accusations and the facts that support them.” Law enforcement, family members, and opposing attorneys will be more than happy to explain what the suspect has (allegedly) done.
Review CPS protocols and regulations. If CPS has skipped steps or not utilized all alternative options as required, point this out to the court. Contact the CPS supervisor and report any lack of due diligence or failure to follow procedure by case managers. Use these failures to discredit the department and caseworker and to show that the department has published these standards to ensure that proper actions are taken to protect both children and their families.
Criminal charges and child custody. Among the biggest impact a criminal case may have on a domestic matter is that the civil case is not stayed. Even though your client may exercise the right to remain silent in the criminal court, exercising Fifth Amendment rights in family court will be taken as an adverse admission and have a negative impact.
Most states use similar fundamental factors to determine child custody. A client’s pending charges or criminal convictions can hinder a custody or visitation claim. In addition, courts will consider as a factor in custody determinations the likelihood that a parent will be sentenced to prison in a pending criminal case.
When preparing for custody hearings involving a parent facing criminal charges or convictions, consider the following factors. A parent who has been absent from a child’s life for extended periods of incarceration may have a weaker bond with the child. A parent facing criminal charges or conviction may have a more difficult time providing a stable home environment or a comfortable means of support for a child. Employers and landlords often ask about prior convictions. Many states consider the moral fitness of a parent when deciding custody. A serious or recent conviction will likely disadvantage your client.
Conclusion. When allegations of criminal wrongdoing surface in a divorce case, early action may save your client unnecessary time, expense, embarrassment, and possibly even a serious and life-changing criminal conviction and a negative outcome in the custody case.
More Information about the Section of Family Law
This article is an abridged and edited version of one that originally appeared on page 20 of Family Advocate, Spring 2011 (33:4).
For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
Periodicals: Family Advocate, quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”
Books and Other Recent Publications: Premartial Agreements: Drafting and Negotiation; Navigating Emotional Currents in Collaborative Divorce; Assisted Reproductive Technology, 2d ed.; Forms, Checklists, and Procedures for the Family Lawyer; Divorce in the Golden Years: Estate Planning, Spousal Support, and Retirement Issues for Clients at Midlife and Beyond; 101+ Practical Solutions for the Family Lawyer, 3d ed.; The 1040 Handbook: A Guide to Income and Asset Discovery, 5th ed.; Confronting Mental Health Evidence; The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases; The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.
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