By Robin Sax
Criminal and family law are seemingly two different types of law but they often overlap. Criminal investigations, prosecutions, and convictions can trigger legal presumptions in family court including the presumption for no custody or the potential to preclude support. Yet, despite the high stakes and natural overlap between these two areas of law, very few lawyers speak both criminal and family law. Criminal law practice is more than just exercising the right to remain silent or to not testify. Criminal law is about investigations and oral advocacy and tends to be quite informal by way of paperwork. Family law is just the opposite. It is more formal, document heavy, and involves many technical legal issues. Things get even trickier as some facts that may find its way to a criminal lawyer or family lawyer may involve not just two courthouses but three. This is when the same course of conduct plays out in three different court systems- criminal, family, and child protection or dependency courts.
The same act (which may or may not amount to a crime) can have a variety of results due to the systems differences. Each justice system has different mandates and goals. The goal of the criminal justice system is to ensure that people are safe, criminals are rehabilitated, and recidivism is reduced. The child protection system (which is neither criminal nor civil but somewhat of hybrid between the two) is designed to ensure that children’s parents and caretakers meet the minimum standard of care and has the ultimate goal of reunification. The family law system is the only system where the state is not a party. Family law cases which includes divorce, separation, custody, finances, property division, and support are initiated by the parties themselves and funded by them too.
The different courts not only have different approaches but can exacerbate vulnerable situations by creating inconsistent orders or by making assumptions that impact another court. A custody order may be inconsistent from a criminal protective order. Other complications exist when one court is being used as a sword for another court. For example, victims of crimes are often accused of making false police reports in order to facilitate a family law case. Yet on the flipside, it might have been the crime that caused the demise of a relationship. Sometimes things are messy and don’t make sense especially when different lawyers are making different pitches in different courtrooms. However, not all is bad news. Sometimes the involvement of three different systems allows for the ultimate of goal of any courtroom— to get to the bottom of an incident and find the truth. But that is only possible with collaboration and expertise from different systems and the inclusion of expert counsel from both fields.
One of the most common cross-over cases in the criminal and family law arena are allegations of domestic or interpersonal violence. Domestic violence is the broad category that includes abuse, mistreatment, stalking, with someone who has an intimate relationship with another. In other words, domestic violence does not necessarily mean that there is marriage or even that the parties live together. Domestic violence occurs in all family structures and victims and abusers alike run the gamut and affect people from all races, religions, cultures, and different socio-economic statuses. Domestic violence can be complicated because unlike random incidents or assaults that may occur as a result of a bar fight or road rage, interpersonal violence comes with it a story, a history, and a relationship. An abuse incident is one thing but facts, circumstances and context may provide a completely different picture. For example, was there a discovery of an affair? It could be the very nature an intimate relationship that may give rise to abuse. Further, facts can be colored by any number of nuances including the existence of and knowledge of each parties “weaknesses” or their hidden secrets and “skeletons in the closet” not to mention how parties may know how and when to punch which buttons. With the complexity of relationships as the backdrop, add in a separation, divorce, custody, and money and all of a sudden the stakes become really high. Criminal allegations and investigations get turned on their heads and words such as alienation and estrangement become the defacto defenses. People lose sight of reality and instead of searching for the truth, polarization of case analysis becomes the box by which a case is analyzed. And, then instead of a search for truth, a case having ramifications in three different courtrooms are being analyzed through the siloed views where the only question is the alleged act (or the crime) really abuse or is it alienation?
Whether criminal charges are well-founded or not, criminal cases can complicate family law
cases and even have dire consequences not just on support, visitation, and custody but can also affect a person’s freedom, liberties, and ability to work. With so much at stake it’s a wonder that family lawyers do not collaborate more often with criminal lawyers. Family lawyers will often feel comfortable with restraining order hearings as they occur in the civil courthouse. But, the very nature of the conduct more often than not has criminal law implications and at the minimum should be investigated, advocated for and tried like a criminal case.
Criminal lawyers work differently than family lawyers as criminal lawyers work with an investigative mindset. Investigation in criminal law is different than in family law as investigation means being creative, resourceful, and determined. Criminal lawyers are used to staking out, digging deep, finding nuggets of information and evidence, and never expecting that some smoking gun is simply going to respond to a discovery request or notice of depo. Criminal lawyers look at cases as a collection of facts that need intricate strategies that all begin with investigation. The investigation leads to the conclusion and not the other way around. Weeks or even months before a case gets to a courtroom, corroborative testimony, impeachment, character information are being sought and secured. How and when to ask questions, when and if to invoke the fifth, and whether to bring in a victim’s rights lawyer are all questions and strategies that need to be considered.
Criminal lawyers bring with them not just investigative know-how and connections to experts such as polygraphers, forensic computer consultants, substance abuse analyzers, but they also bring about a level of comfort in the courtroom that many family lawyers never get the opportunity to enjoy. Most family law cases do not go to court and few ends with a trial. Even when they do, they are not in front of a jury. The criminal lawyer’s playing field is the courtroom where their greatest skill is how to try a case. As Los Angeles criminal defense lawyer, Philip Kent Cohen points out “Criminal lawyers try cases everyday. That is what they do.” They know to wrap evidence in a story, know how to present compelling evidence, and feel comfortable with thinking on their feet. They know how to bring out the bad facts before the other side does and knows how to make the good evidence sparkle.
Family lawyers can benefit from the involvement of criminal lawyers and these cases can borrow from the prosecutorial standard of care- multi-disciplinary teams. Abuse charges are often investigated by multi-disciplinary teams where prosecutors work with social workers, medical providers and law enforcement in order to address the different aspects and needs of a client or a case. Private lawyers should take notice and create their own team. The multidisciplinary team in a criminal/family crossover case particularly in an abuse case should include a criminal lawyer who can lead the investigation, bring the restraining order action, a family lawyer who can speak to the standards and laws in family court and how the shorter term criminal issues will impact long term custody and support, a skilled investigator, and potentially a mental health provider. As disciplines overlap, expertise and collaboration serve the clients, cases, and ultimately streamlines the results in the various courts.
Copyright 2019 by Robin Sax. All Rights Reserved.
Robin Sax is a former Los Angeles County Deputy District Attorney who focused on prosecuting sex crimes against children. She is an experienced litigator with an emphasis on criminal and family law. Robin has represented victims of crime as well as the people who have been falsely accused of crimes in order to gain advantage in a family law case. Sax is a nationally recognized expert in child sexual assault, domestic violence, and child abuse.