When family law meets criminal law
By Murray Maltz
There are those who think that criminal and family law are unrelated and never the two shall meet – that family law is dealt with in the family law courts with its own set of rules and law, as are criminal proceedings. However, there are times when the two do come together. In fact, criminal proceedings often have significant impact on family law.
For example, family arguments can get the best of people and make good people say the wrong things or engage in inappropriate behaviour. In the midst of an argument, you may threaten or push your spouse. No matter that it is in the heat of the moment – this is a criminal act and cannot be condoned. You could be charged with assault or uttering a threat. Similarly, any sort of violence or even an abusive comment in front of a child is wrong and cannot be tolerated.
A criminal charge has a significant impact in a family matter. The criminal courts place various bail restrictions on your freedom. Often, part of those conditions is removal from the matrimonial home, non-communication with your spouse, and no child visitation without court approval.
Being removed from your home and the inability to communicate with your children immediately changes the dynamics of the family law matter. You no longer have any sort of control in the family and the ease of speaking to or seeing your children has dissipated.
Without doubt, the criminal proceedings will be raised in family court. If the charge is that of an assault or threatening the other spouse, the violent act has a direct impact on the issue of custody and access. Certainly, if a person is violent in nature or has a temper, it can be argued that for purposes of raising children he or she is not able to communicate with his or her spouse in a civil fashion. If parents cannot communicate, there may be a need for sole custody or parallel parenting as opposed to joint custody. The courts are reluctant to force people to try and talk to each other if one party is violent or aggressive towards the other.
To dispel the allegation of violence there is a need to proceed through a criminal proceeding with the hope of an acquittal. A plea of guilty acknowledges violence for purposes of family law. At the same time, an acquittal on the charges puts you back to an even playing field. A trumped up charge may even be detrimental to the spouse laying the charge. One could argue that an improperly laid charge was done for the purpose of minimizing one parent’s involvement with the children or employing a selfish remedy of removing the other spouse from the matrimonial home in an expeditious but improper fashion.
There are plenty of cases where a charge is falsely laid in order to get an advantage in a family law proceeding. Though removal of your spouse quickly from the house and controlling the children without involvement from the other parent is a quick fix in the heat of the moment, it is wrong in the long run. Beyond being abusive of the criminal court system it does not assist in resolving the dispute in a friendly, non-confrontational fashion. Also, the family law courts do not look favourably on a parent using the criminal courts in a family law proceeding to obtain an advantage. In fact, it may show the courts that you will act inappropriately and there is a need to assure your spouse is protected from your bad behaviour.
Whether the charge is warranted or not it is suggested that you deal with the matter quickly in the courts. You will need to assert your claim for custody and access. Criminal matters can take time to resolve them selves and if you decide to wait to the conclusion of the criminal matter you may find that it is detrimental to your claim for custody and access.
Should the criminal courts convict a parent of a violent act, the family courts will take into consideration the severity, repetitive behaviour, and the context of the act. In some cases bad behaviour can be mitigated by entering into therapy or counselling.
The best advice is to never act in a violent or abusive fashion. It is wrong and accomplishes nothing. Better to walk away then confront someone aggressively in an argument. Wait until both of you can talk and try it again.
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