At the Intersection of Criminal Law and Family Law

Criminal law and family law each serve society in different ways. However there are often times when a family law issue and a criminal matter come into contact with one another.  This is the intersection of criminal law and family law, which is the topic of discussion for my blog this month.

The intersection of family law and criminal law generally comes into play when there are allegations of domestic violence, child sexual abuse, child kidnapping, and most commonly simply interfering with a child custody order.  In recent years interfering with child custody orders has become a very prominent topic in the field of psychology.  More particularly parental alienation has come to the forefront and is now a subject that is being discussed widely in the court rooms across the United States.  While other criminal acts that could affect a family such as DWI or drug use, the proponent must show how the bad actor’s actions affected the children before the Family Law Courts have power to do anything.  

Contempt is Criminal

A Judge can use jail as a sanction in family law contempt proceedings

First we have to establish that criminal law is designed to identify and punish individuals who break the law or do things which are wrong; and Family law is designed to rectify or address those issues which rise between spouses and family members.  Unfortunately as a divorce and custody lawyer I am often confronted by the client who in a family law context wants to punish the other side and sometimes my client is on the receiving end of a spouse who wants to punish him/her for some perceived wrong.  While society and moral values may require or expect spouses to conduct themselves in a certain manner there is no such requirement under the law. and it often amazes clients to discover that while it is immoral and arguably unethical to treat your spouse the same as you treat people you do not know, the law does not care nor does it afford these protections.  Simply stated, a Judge in a divorce or custody context will not extract vengeance on your behalf.

Family law and criminal law also intersect when one party is accused of assault of a family member.  This is the one exception to the rule that a family member particularly a spouse is not afforded more protections from his or her spouse than in the average stranger.  In the context of a criminal case, the law distinguishes between assault of an individual and assault of a family member.  In the state of Texas assault causing bodily injury is a Class B misdemeanor punishable by a fine of up to $2000 dollars in jail for not more than 180 days.  However that same assault – if the victim is a family member or person with whom there is a “dating relationship” becomes a Class A misdemeanor which is punishable by a fine of up to $4000 and/or jail for up to one year.  Keep in mind however that these are criminal sanctions and in a criminal court the judge or jury must find the defendant guilty beyond a reasonable doubt and there is a presumption of innocence, whereas in a family law case there is no such presumption of innocence and the burden of proof is preponderance of the evidence (i.e. more likely than not).  

  More to the point of this month’s blog, a Judge cannot send a spouse or parent to prison for being a bad spouse or parent unless what he or she has done crosses a behavioral line and violates criminal law in the process.  That said a judge can restrict or deny a bad parent possession or access to the children based on what is in the children’s best interest even if the conduct is not sufficient to send them to jail.

In nearly half of all custody cases I see, one side is angry and alleges the other should be punished.  There are allegations of neglect, assault, or worse but the majority of the time, the allegation is levied and never proven in court, even by the civil standard of preponderance of the evidence and certainly not by the criminal standard of beyond a reasonable doubt.  The wise parent/spouse will spend his or her time focused on the children and let go of hurt feelings, desires to get even, or the goal to simply win the last fight.  But then again, if all my cases involved two spouses/parents who cared more about the truth and the children than “winning”, my services would not be required.  

If you find yourself in a situation where the other party does not care about the truth, maybe he or she has made up an alternative truth in order to “win” the last fight or perhaps you are being wrongly accused of a crime as part of a divorce or custody fight, give Attorney Roy L. Reeves a call at 972-596-4000 to discuss your options.

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