I am the lead attorney in my client’s criminal domestic violence trial and divorce. While the merits of the criminal case will be determined by the jurors, the pervading question is the validity of the allegations while the parties concurrently are engaged in a bitter divorce case.  Both parties are keenly aware that the domestic violence case is directly relevant to their child custody, visitation, and spousal support issues in their divorce.

Although family law and criminal law are two very distinct areas of the law, they frequently overlap creating challenges for lawyers who specialize in just one area. When a family law case involves elements of criminal law such as domestic violence, child abuse, restraining orders, alcohol  (DUI) or drug offenses, the case becomes exponentially more complicated for the family law practitioner.

I was a District Attorney in Los Angeles County for 10 years with extensive experience in family violence and DUI/Drug criminal cases along with prosecution of child support cases. With 26 years of experience in both family and criminal law, I strategize accordingly in order, to minimize the impact a criminal conviction could have on my client’s divorce or custody case.

Often the multitude of orders in the family courts and criminal courts need to be consistent since conflicting orders will negatively impact your client and the children. Cases may proceed simultaneously in different courts and through different attorneys exposing the challenges of which orders take precedence. Note as well the different burden of proof since family law is in the civil arena while criminal law poses the paramount burden of proof of beyond a reasonable doubt.

I have written about the importance of how criminal charges such as child abuse, domestic violence, DUI, or drug related arrests must be litigated to its fullest extent possible in order, to prevent negative consequences in the divorce case.  A conviction of a violation of a restraining order, a drug charge, or child abuse/neglect for example, would be considered by the family court judges in determining custody, visitation and spousal support.

All states have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving custody or visitation disputes between parties.  Additionally, in all states, individuals who have experienced domestic violence possess civil and criminal remedies such as a restraining order.

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is requested to leave the home. Law enforcement is also authorized to remove firearms, when they arrive at the scene of a domestic violence incident without further investigation or court intervention.

In some states, the police can give the victim an emergency protective order (EPO). An EPO is a short-term protective order typically given to a victim by the police or a judge. This permits the victim to file the necessary paperwork in family court for a permanent restraining order.

Any drug or alcohol related arrests and conviction impacts the court’s ruling as to which parent should have legal and physical custody of the child. In determining what is the best interest of the child, the judge will review a parent’s history of drug and alcohol use or abuse and impose certain conditions for visitation or even find that no visitation shall be allowed.

As for any reports of child abuse and/or neglect, the Department of Children Services will also become involved and depending on the police findings and agency recommendation, a criminal case will be filed. The family law judge will then make a finding of whether a parent (defendant in the criminal case) has any visitation or custody rights.

I have represented many clients in both arena and have even taken the criminal cases to trial since I know the dire consequences to my client’s family law case if a conviction results. A false allegation of domestic violence, child abuse, or drug use will have detrimental consequences, so it is critical that a client who faces both criminal charges and a divorce is represented adequately in both arenas.

If you have any questions, email me directly at [email protected] or call my office at 310-601-7144.

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CategoryLegal Advice