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Posted on December 21, 2020 in assault & violent crimes
Click below to listen to Rosenstein Law Group‘s Timothy Hintze talk to My Modern Law Billy Tarascio talk on when family and criminal law intersect when one spouse is accused of abuse towards another spouse or child.
In some circumstances, the actions of one spouse can trigger criminal charges in the state of Arizona during the divorce process. In fact, the subject of criminal law does appear often when spouses are accused of domestic violence. If you have been accused of any domestic violence, you want to ensure that your legal rights are protected. When these instances occur, there is an intersection between family and criminal law. Visiting with an experienced criminal defense attorney like Tim Hintze at Rosenstein Law Group can help you better understand all of your legal options and ensure you receive the justice you deserve. At My Modern Law, and Rosenstein Law Group we understand that there can be a nexus between family law and criminal law. Learn more about how these two areas intersect below.
In many cases, what actually triggers a divorce or separation is allegations of domestic violence. These charges can range from misdemeanors to felonies depending on the accusations and facts and circumstances. In other cases, a criminal charge can occur as a result of a sexual molestation accusation against either the other spouse or the children. While it is important to take any allegation seriously, the truth is that there are many instances in which a spouse uses criminal allegations in order to be vindictive against a spouse during the divorce process.
The Arizona State Legislature has a Victim’s Bill of Rights that attempts to ensure the rights of all victims of abuse. If one spouse alleges any kind of sexual misconduct against the other spouse, they may receive an order of protection or an emergency order for custody of the children. Therefore, the intersection between family law and criminal law is clear as a hearing will have to occur in order to make a determination regarding custody of the children or protective orders. In these cases, a defendant will have to make a decision because while they do not want to have any criminal liability, they also do not want to make the divorce process more adversarial. Unfortunately, many people accused of criminal activity such as sexual molestation or abuse in divorce cases are completely innocent. Again, because there is an intersection between family and criminal law, those persons wrongly accused should consider visiting with both divorce and criminal defense attorneys.
Many people accused of crimes they did not commit want to state their case at a hearing for orders of protection or emergency orders for custody in family court. However, anything that spouse says during those hearings can be used against them in their criminal case. Even innocent mistakes told during these hearings can be used to accuse a person of lying about much bigger issues, such as child molestation or physical abuse. The testimony in these court hearings is taken under oath and therefore can be used to impugn the character of a spouse at a later time. While it makes sense that a spouse would want to have custody of their children, and fight for the right to be with their children, they may need to take the time to visit with an experienced criminal defense attorney to ensure that they proceed in such a way as to protect all of their legal rights.
If a spouse makes the decision to testify on their own behalf regarding their innocence in an order of protection or emergency order for a custody hearing, they have several options. First, they can make the decision to bring any witnesses to the hearing that can confirm your testimony through eyewitness evidence. Additionally, it is important to understand that spouses have the legal right to take the Fifth Amendment against self-incrimination and simply not speak to the allegations in family court. Remember, that even if you do not have criminal charges already filed against you, something you say in these hearings could lead to criminal charges.
The plaintiff (the person making the allegation) has the burden of proof to show the court the criminal activity or domestic violence occurred and that the judge should enforce the order of protection or emergency order of custody. If a defendant (the person accused) does take the stand against the allegations, they can take the Fifth Amendment on some questions, but answer others. In some cases, this may be a wise course of action that can prove to the court the baselessness of the allegations presented.
In these types of cases, the plaintiff will need to testify and may inadvertently slip and say something to prove that the allegations are baseless. If you are facing fraudulent accusations of any kind of abuse, consider visiting with an experienced criminal defense attorney to determine how best to proceed.
There are many different instances where a criminal case and a divorce would intersect.
In some instances, the criminal case already exists and a determination yet has to be made by the court regarding spousal abuse or child abuse. In most cases, the determination of this criminal case will be critical to the decision of a family court to allow a parent to spend time with their child. In some cases, a criminal defense attorney will have the ability to reduce the charges which can allow a parent to pay restitution and attend classes. In certain instances, if this is all done within a certain time frame, the criminal case will be dismissed.
If there were criminal charges years ago, then a parent can easily explain to a family court that those were problems from the past and give examples as to how they have overcome those issues and struggles. Courts generally give people the benefit of the doubt regarding the rehabilitation process, as the court system is intended not just to punish but to rehabilitate.
At the end of the day, the decision to testify regarding family hearing matters while a criminal charge exists is a problematic and challenging one. In some cases, it involves the different timing of the family court hearing with regard to the criminal case. In other cases, decisions can be made only after weighing the cost of a parent not seeing their children temporarily versus permanently. Because of the nexus between family and criminal law in these instances, consider visiting with the experienced divorce attorneys at My Modern Law and Tim Hintze at Rosenstein Law Group to better understand all of the different aspects of your divorce and your legal rights.