Malicious Parent Syndrome

Apr 14, 2025 | Blog, Child Custody, Family Law

Malicious Parent Syndrome, Parental Alienation, and Texas Family Law: What You Need to Know

Introduction

When parents separate, custody battles can become emotionally charged. But some conflicts escalate into harmful behavior that can have lasting consequences for the child. This is where Malicious Parent Syndrome (MPS) and Parental Alienation come into play. In Texas family law, these issues can significantly impact custody arrangements and parental rights.

What Is Malicious Parent Syndrome?

Malicious Parent Syndrome (MPS) describes destructive behaviors where one parent intentionally damages the child’s relationship with the other parent. While MPS is not officially recognized in the DSM-5, its effects are real and concerning.

Key Characteristics of Malicious Parent Syndrome:

Denigrating the other parent – Making false accusations or portraying them negatively.
Withholding visitation – Blocking access to the child under false pretenses.
Creating a hostile environment – Instilling resentment or fear toward the other parent.
Using the child as a weapon – Manipulating emotions for personal gain.
Lack of remorse – Showing no concern for the emotional damage inflicted.

Consequences for the Child:

Children caught in the middle of these situations may suffer from:

Emotional distress (anxiety, depression, self-esteem issues)
Strained relationships with the alienated parent
Difficulty forming healthy attachments in future relationships

Parental Alienation and Texas Family Law

Parental Alienation refers to any deliberate effort to damage the parent-child bond. Texas courts recognize parental alienation as emotional abuse and consider it when making custody decisions.

Legal Considerations in Texas Custody Cases:

Best Interests of the Child – Courts prioritize emotional and physical well-being (Texas Family Code §153.002).
Modification of Custody Orders – Courts may adjust custody under Texas Family Code §156.101 if alienation is proven.
Psychological Evaluations – Mental health assessments help determine the impact on the child.

Potential Legal Consequences for Alienating Behavior:

Loss of custody if alienation is severe
Reduced visitation rights
Court-mandated therapy to repair relationships
Legal penalties, including contempt of court for custody order violations

How to Address Malicious Parent Syndrome in Court

If you suspect Malicious Parent Syndrome or Parental Alienation, documentation is crucial:

Record evidence – Keep texts, emails, and observations that demonstrate alienation.
Seek professional evaluations – Therapists and parenting experts can provide assessments.
Gather witness testimony – Teachers, family members, or counselors can support claims.
Consult a family law attorney – A Texas custody attorney can guide legal proceedings.

Final Thoughts

Malicious Parent Syndrome and Parental Alienation can have devastating effects on children and families. While the Texas legal system does not define MPS as a formal condition, courts recognize parental alienation as a serious issue when determining custody. Understanding the warning signs and taking legal action can help protect the child’s well-being and ensure fair custody arrangements.

If you are facing custody challenges, seeking legal advice from a Texas family law attorney is an important step.

If you’d like to schedule a free consultation with us, then you can visit us at https://heimanlawfirm.com/

Navigating Parental Alienation – A Guide for Families

Mar 18, 2025 | Blog, Child Custody, Family Law

Navigating Child Reluctance in Post-Divorce Parenting: A Guide for Texas Families

As children of separated parents grow older, they may express reluctance to spend time with one of their parents. This can strain not only the relationship between the child and the parent but also between the parents themselves. If left unaddressed, these issues might lead to estrangement or even legal disputes. Therefore, addressing the issue promptly and effectively is crucial. Sometimes, but not always, that reluctance is caused by Parental Alienation Syndrome (PAS).

Understanding the Root Cause

The first step in tackling this issue is to have an open conversation with your child to understand their reasons for reluctance. Are they bored, missing friends or activities, or is there an issue in the parent-child relationship? Identifying the root cause is key to addressing the problem effectively. Children often take emotional cues from their parents or caregivers, so maintaining a positive attitude about the other parent can significantly influence your child’s perception and willingness to spend time with them.

Encouraging Positive Interactions

In non-PAS cases, the other parent might encouraging positive discussions about how spending time with the other parent can be beneficial. Visits can be framed as exciting adventures or mini-vacations, focusing on the fun and unique opportunities each parent can offer. It’s essential to foster a supportive environment where the child feels comfortable and excited about maintaining a relationship with both parents.

Addressing Parental Alienation

In some cases, unfortunately, one parent might actively discourage the child from visiting the other parent, leading to Parental Alienation Syndrome (PAS). This syndrome involves a parent, often with the assistance of his or her relatives, fostering a child’s rejection of the other parent. Parental alienation is treated as child abuse in Texas, and allegations are taken seriously by the courts. If you suspect PAS is occurring, quickly consulting a lawyer experienced in such cases is vital. Delaying action can exacerbate the issue, such as by allowing false memories to go unchallenged for long enough that they seem, to the child, to be actual memories.

Legal Compliance and Enforcement

If a parent is non-compliant with a possession order by not facilitating visits, judicial enforcement and/or the ordering of Reunification Therapy, might be necessary. Courts expect their orders to be followed, and failing to do so may result in dire consequences for the non-compliant parent; especially if that non-compliance harms a child’s relationship with his or her other parent. Contempt of court, and incarceration, are sometimes a consequence for alienating parents. Texas courts, for instance, are increasingly intolerant of parents who claim they cannot facilitate visits, while being able to manage other commitments for the child, such as school or sports activities.

The Importance of Legal Guidance

In litigation, such as an Enforcement Action, or the ordering of Reunification Therapy, approaches may vary by state. Consulting with an attorney familiar with your local jurisdiction is essential. An experienced Family Lawyer can help navigate the complexities of these cases and ensure that both the child’s and parents’ rights are protected.

Conclusion

Children deserve healthy relationships with both parents, and courts have tools to ensure that ordered possession periods occur. It’s crucial to address any reluctance or alienation issues promptly to safeguard these relationships. These are complicated cases, in which the information provided by the child is sometimes either not factually valid; or, is interpreted in the worst possible way, by the child; with the encouragement and assistance of the alienating parent.

Until next time, continue to love and support your kids, fostering a nurturing environment that encourages strong family bonds.

How is our family law firm different??

Jan 23, 2025 | Blog, Child Custody, Child Support, Divorce, Family Law

Clients who come to us, after using larger law firms, often complain that those bigger law firms seem to be more focused on generating fees, than providing effective and efficient representation. They tell us stories of enduring too many long, in-person interviews and meetings with various staff members (which they are charged for); being provided, and billed for, detailed written information about Texas Property Law, most of which does not even apply to the facts of their own case; vast amounts of discovery requests (such as oral depositions and subpoenas of non-parties) being generated and billed for) at the beginning of the case—instead of first narrowing the case to determine if formal discovery is needed or desirable; and if so, which forms of discovery would work best for your case. We have even experienced firms that will continue litigating a case after it has become obvious that their claims stand little-to-no chance of prevailing. They continue to litigate simply to generate attorney’s fees. Each and all of those activities leave clients believing that the practice of law is about earning money for legal professionals

While our firm does, indeed, seek to generate fees, we come at it entirely differently. Having practiced in DFW since 1989, the overwhelming majority of our clients come to us by referral—either from our prior (or current) clients; or, from other attorneys who do not practice Family Law; at least not highly adversarial Family Law cases. Why is that? Well, we know that providing quality representation is important; but so is doing it an efficient and effective manner.

So, rather than starting-off with an in-person consultation, that our clients would be billed for, we, instead, offer free 30-minute initial consultations over the phone. Next, when our clients hire us, instead of having oral conversations with our clients (in order to obtain basic case information), we, instead, send secure links to a portal, where our clients are prompted to enter information about themselves, their families, and their property (if applicable) directly into our system We can retrieve that information as needed; and, in significantly less time than it would take to gather that information through a conversation.

After retrieving that information, we discuss case options (such as, e.g., whether we need to prepare, and send, discovery requests to another party, or a non-party; whether we want to request temporary relief (such as Temporary Custody and Support Orders) from the court; and so on. Sometimes those items are desirable, and at other times, they are not. The point is that case activities are planned, so that costs and benefits can be analyzed, considered, and decided upon.

Finally, we bill in 1/10 hour increments, rather than the traditional quarter-hour increments. Also, we will aggregate brief emails together (which are sent back-and forth in a brief conversation), and make just one charge for the bunch, rather than charging for each email sent or received. I don’t like being nickel–and-dimed as a consumer; and so, we work to avoid doing that as legal professionals.

As of yesterday, our law firm appeared in spot #28 of a search for local attorneys. That ranking not likely to generate new clients. And, yet we stay busy. Referrals are the key to our practice thriving. We know that, respect it, and work to earn those referrals

Thank you for taking the time to read this piece!

My best,

David

https://heimanlawfirm.com

“If the parents cannot agree about child custody (“conservatorship”) how will the court make a decision on that issue?

Dec 19, 2024 | Blog, Child Custody, Family Law

The parties (parents) will present evidence, and then the court will make a decision that the Judge believes will be in the child(ren)’s best interest.

In determining that best interest, courts consider the following, non-exclusive factors in Texas:

● the desires of the child

● the emotional and physical needs of the child now and in the future

● the emotional and physical danger (of one parent) to the child now and in the future

● the parental abilities of the individuals seeking custody

● the programs available to assist the parents

● the plans for the child by these individuals

● the stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one

● any excuse for the acts or omissions of a parent.

We will want to prepare our evidence in a logical, easy-to-understand manner, so that our presentation best shows why those factors favor you.

That is why it is important that you take the time necessary to thoughtfully and completely input information into our system. We will discuss all of this with you prior to any hearing or mediation.

Can I Change my Child Custody Order?

Feb 18, 2024 | Child Custody

So, you have a child custody (or conservatorship) order. It was arrived at either by initial agreement of the parties, informal negotiation, mediation, or after a trial. And now, one of the parties wants to change it. Can that be done?

It is widely reported that each of the United States, and each territory of the United States of America, provides for modification of child custody orders under certain circumstances, such as a substantial change in the circumstances of a child, parent or other relevant party. The requirements for doing so vary from state to state. I am licensed to practice law in the State of Texas, and in no other. Accordingly, my comments will focus on, and be limited to, Family Law proceedings within the Texas court system. While these comments may or may not also apply to another state or territory, it is important for a party who is considering this issue to be advised by an attorney who is properly licensed within the relevant state.

In Texas a final “custody”[1] order may be changed under a few different conditions which may have arisen since the last custody order was entered[2]

The most common reason that a child custody order is changed is because of changed circumstances of a child, parent, or other party. The change(s) must be material and substantial, to the extent that the current order is no longer in the child’s best interest. Further, case law provides that the change must be something not anticipated by the current order. So, for example, the mere fact that a child has aged, and/or is in a different grade or school is not, by itself, a sufficient change to warrant a modification of custody. An example might by the child’s development of a learning disability or emotional condition that negatively affects the child; and, further, which is unacknowledged, or unaddressed, by the parent currently having “custody.” The types of changes that may be material and substantial vary from family to family. The question is whether that change is something that should be addressed by the court, because the current orders do not properly address it.

Another reason why a custody order can be changed is the designation of a child who is twelve (12) years or older. A child of that age may express his or her wish regarding custody. Importantly, because the best interest of the child is still the required finding for the custody change to be made, the court does not have to follow the wishes of the child. A child might prefer a parent who does not ensure that school assignments are completed; or, one who allows the child to abuse drugs or alcohol. It is unlikely the court would find the child’s desire to be in his or her best interest in those circumstances.

Finally, custody may be changed if the parent with custody voluntarily relinquishes possession to another, for six (6) months or more, unless that relinquishment was due to the parent’s military service. Of course, the child’s best interest is still paramount.

Child custody matters can be emotionally fraught. Having a good emotional support system, along with wise legal advice, can be helpful in getting though that minefield.

Until next time, take care of each other, and love those kiddos!

[1] ”Custody” in not a formal term used within the Texas Family Code. Arther the term “conservatorship” (a Trust term) is used to describe those entrusted with the care of a child or children. And, the right to designate the Primary Residence of a child is awarded to one of the conservators. Being a conservator who has that exclusive right is the equivalent of what most people think of when they used the term “custody.” So, for ease of understanding, it will be used herein.

[2] If the change of “custody” is sought within one year of the entry of the effective order, then there are additional circumstances that must be shown, besides what is discussed herein today, This is a topic for a future post, so stay tuned!

Important Factors in Cases Requesting Protective Orders

Nov 1, 2023 | Child Protective Services, Child Custody, Protective Orders

Introduction:

A protective order is a court order that can be entered by the court to protect a victim of domestic violence, assault (sexual or otherwise), abuse, stalking, and/or threats by a family member, household member, or (current or former) dating partner. We have written more about these cases here: Legal Protections for Family Violence (Part 1) and here Legal Protections Available for Family Violence. A review of those posts provides context for this one. Today, we will discuss some of the considerations that are pertinent to these types of cases.

Discussion:

Cases in which Family Violence has been alleged by one partner against another raise issues that are not usually present in other types of cases; issues such as (often) a lack of witnesses who might corroborate or dispute the allegations; sometimes, either a lack of physical evidence, or evidence which is ambiguous, such as whether physical marks, bruises, scratches, and so on are “defensive,” i.e. were inflicted by a person trying to protect themselves, or were caused by an event unrelated to an encounter between the parties; or, even whether they were self-inflicted. So, it is important for the person requesting the Protective Order, as well as the person who is alleged to have committed Family Violence, to focus on the details of the case. These cases are not ones “to wing,” or to do “off the cuff.”

As discussed in the first article linked above [“Legal Protections for Family Violence (Part 1)], Texas has provisions for Emergency Protective Orders, which are typically granted upon the arrest of a person for a Family Violence crime (such as Domestic Assault), and usually last for sixty-one (61) days. Those are granted without a hearing, based solely on the arrest documentation provided by the police department. Those relatively short-lived cases are not what this post is addressing. Instead, it’s the potentially much longer Protective Orders that can be granted by a District Court, after application and hearing, that we are focusing on today (these cases are discussed within the second article linked above, (“Legal Protections Available for Family Violence”).

The investigation of the legal case (for both parties) typically begins with the police report (“Incident Report”). In Texas, the Application for Protective Order will almost certainly contain a report from one or more law enforcement officer who investigated the incident. The details of this report are important, and if they don’t align with other case materials, such as medical reports, witness statements, photographs, audio/visual recordings (and so on), then those details are suspect, and can be questioned. A skilled lawyer, defending the person against whom the allegations are made, will point-out those discrepancies to the court, so as to cast doubt on the reported incident of Family Violence. And, a skilled lawyer prosecuting the case will address and explain those discrepancies (to the extent that can be done) before the defense lawyer has the opportunity to exploit them. Details, and explanations of variances within those details, are important.

Next, any witnesses who might either support or refute the case allegations should be approached, and, if possible, interviewed. If a witness refuses to speak with either lawyer, then that lawyer should be sure to provide evidence that the witness seemed to be favoring one party’s ability to investigate the case, instead of providing truthful information to everyone who sought it. This raises the issue of the impartiality of the witness.

How do the witness statements compare to the statement given by the person claiming to be the victim? If there are more than one witness, do they agree with one another on all important details? Do the witness statements conform with the officer’s report, and with the physical evidence, visual/audio recordings, photographs, etc.? Are there reasonable explanations for the variances? Is there evidence that witnesses discussed the events in question with one another, to arrive at a consensus narrative?

I next want to know whether the person making the claims in the case sought medical treatment. If so, was there a diagnosis made? Is there a medical report confirming that the wounds, marks, etc. are consistent (or inconsistent) with the patient history (what the patient told the health care provider)? When this information exists, it is often helpful to one side or the other. Consequently, both sides need to be aware of its existence.

Finally, I want to see how the parties communicated with one another running up to their important encounters, and whether they communicated afterwards. I expect to find a text string between the parties when I get one of these cases. What did they say to one another before, during, and after the event(s) in question? This is often quite helpful in determining what likely did, or did not, occur between them.

Protective Order cases can have a significant impact on both parties. And so, I encourage everyone involved in one to take it seriously. The court wants to grant a Protective Order when appropriate, but not grant one when not proper. Our job is to help the court see what is right in this particular case.

Keeping Children Safe

Jun 22, 2023 | Child Custody, Child Protective Services, Family Violence

Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.

Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making

Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.

Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection

Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?

Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.

These are the first few considerations. We will address more of them with the next post, so check back for more useful info!

Convincing a Court to Lift a Residence Restriction on a Child (Part 1)

Feb 18, 2023 | Child Custody, Family Law, Protective Orders

The ability of a court to restrict the residences of children is one which varies under state law, from state to state. I am licensed to practice law in only the State of Texas, so my discussion will focus on Texas law. While there may be similarities to the laws of other states, you should check with an attorney licensed in the state in which your case sits, if that state is not Texas.

The issue of lifting, or modifying, a Residence Restriction, just like with other child custody and possession issues in Texas cases involving children, comes down to determining what is in the child’s best interest.[1]

The Texas Family Code[2] provides that it is the public policy of the State of Texas to:

Assure children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (my emphasis).
Provide a safe, stable, and nonviolent environment for the child; (my emphasis, again); and
Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Accordingly, our Supreme Court has held that that “(t)he Legislature’s expressed public policy considerations guide our analysis of the positive-improvement and best-interest standard in the relocation context, but no bright-line test can be formulated. Suits affecting the parent-child relationship are intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.

In looking at whether the change to the Residence Restriction is in the child’s best interest, courts should consider, among other things:

(1) the reasons for and against the proposed move;

(2) the effect of that move on extended family relationships;

(3) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child;

(4) the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the noncustodial parent and the child;

(5) the nature of the child’s existing contact with both parents and the child’s age, community ties, and health and educational needs;

(6) whether there is a good-faith reason to request or oppose the move;

(7) the noncustodial parent’s ability to relocate;

(8) the degree of economic, emotional, and educational enhancement for the children and custodial parent; and

(9) the need for continuity and stability in custody arrangements.

Further, to the extent applicable, the best-interest factors used when establishing the initial or current order may be considered

Importantly, the controlling considerations for the court are those changes of conditions affecting the welfare of the child. The desires, acts, and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child.

So, for example, a change affecting the best interest of a child may be whether one or both parents are romantically involved with other individuals who are frequently around the child. If so, what is the nature of the relationship between the new romantic interest and the child? Has either parent developed a Substance Use Disorder? Have the work hours of a parent changed? Is there a new step-brother or sister in the picture? The list of possible changes is long. The idea is to focus on what is new or changed since the order imposing the Residence Restriction was entered. The court will not want to consider whether the Residence Restriction should have been imposed in the first place. That decision was made earlier. Our job will be to show that it is no longer in the child’s best interest.

I hope that this has given you some things to consider. Until next time, keep on loving your kiddos!

[1] TFC Section 153.002

[2] Section 153.00l(a)(l)

Protecting Children When a Parent Has a Substance Abuse Disorder

Jan 18, 2023 | Child Custody, Child Protective Services, Protective Orders

According to the National Institute of Mental Health, “A substance use disorder (SUD) is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as legal or illegal drugs, alcohol, or medications. Symptoms can range from moderate to severe, with addiction being the most severe form of SUDs.”[1] When a parent has a SUD, the parent-child dynamic is always affected to some degree.

In fact, research studies indicate that the children in these situations have an “ elevated risk that children of substance abusing parents face in general for poorer academic functioning; emotional, behavioral, and social problems; and an earlier onset of substance use, faster acceleration in substance use patterns, and higher rates of alcohol and drug use disorders.”[2]

So, obviously, this is an important issue in child custody cases, with or without an accompanying divorce. What are some of the ways that courts address these situations? That is the subject of today’ blog post.

Protecting children from the adverse effects discussed above is the primary goal of the courts in these situations. And, it should be the primary goal of both parents. The issue that typically arises first is a recognition of the problem by both parents. The parent having the SDU often will not recognize that his/her substance abuse is, indeed, a problem for the children. That parent may defensively opine that the “real problem” is with the other parent, who is “too uptight,” or who “just needs to relax (or chill).”

If that SUD remains unrecognized by that parent, then a court order will, likely, be required, to put into place protective measures. Those measures may include: limiting the possession (“visitation”) time of the parent abusing the substance(s). If, for example, that parent has a habit of drinking alcohol in excess during the evening and night hours, then his or her right to possession of the children may be limited to daytime hours. Or, if a parent smokes marijuana on weekends, then his or her possession rights may be limited to just weekday periods. Texas courts have broad authority, and indeed, an express duty, to enter orders that both protect children, and that are in the best interest of those children who come before them.

In the case where the parent having the SUD apparently addresses the problem, by refraining from using those substances previously abused by him or her, the other parent and the court may want to be able to confirm that the person is remaining clean and sober. And so, drug tests may be ordered.[3] If the substance being abused was alcohol, then the court may order that the parent with the problem subscribe to a service that provides a pocket-sized alcohol testing device. Times can be set for testing, such as: 30 minutes prior to the beginning of the parent’s possession period; 2 hours after the possession period begins; early the next morning (if the visit is overnight). Additionally, the right to random testing requests by the other parent may be ordered.

The goal of providing structure to these possession periods is not to “punish” a parent. Instead, it is to work towards providing a safer environment for children. After all, isn’t that the most important issue?

Until next time, keep on loving the kids in your life!

~David

[1] https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health#:~:text=A%20substance%20use%20disorder%20(SUD,most%20severe%20form%20of%20SUDs.

[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3676900/

[3] Urine, hair, and nail tests are currently used in the jurisdictions where I practice law. This series of tests gives a broad picture of use, both recently and over the course of the past few months.

Having a Child Custody Case With Pending Criminal Charges Against You

Dec 18, 2022 | Child Custody, Family Law, Family Violence, Protective Orders

In our practice, we see cases in which there is a pending criminal charge, such as for DWI, and a civil case, involving child custody issues. Sometimes, the criminal charge involves an alleged assault. Whenever we have one of these cases, we build our case on demonstrating the best interest of the child. It is too easy for the parents to focus on one another, as opposed to what the court truly cares about: what is best for the child or children of those parents. Our job is to make sure that the case is properly focused where it should be.

We have written several articles about representing the parent against whom criminal charges are not pending. Today, we write about representing the accused parent. There are complications involved in this representation. For example the accused parent’s criminal defense counsel will, almost certainly, advise against having that parent testify at any hearing or deposition, in order to preserve his or her 5th Amendment Right Against Self-Incrimination. The idea is to not provide any evidence which the prosecution might use in building their case.

Once they know what a criminal defendant is going to say, they can guide or highlight their presentation to account for that testimony. That makes it easier for the prosecution. The criminal defense attorney, of course, does not want us to assist the prosecution in that way. So, what we can do is present non-testimonial evidence, such as the lack of evidence on certain aspects of a case.

Examples of this are the lack of photographs, audio recordings, contemporary notes, or medical records supporting the allegations being made against the parent. If the other parent is the one making the allegations against our client, then his or her testimony can be obtained, thereby “freezing” their account of events. That parent can be asked about why s/he did or did not take certain actions, such a generating the evidence mentioned above. Also, our questioning can obtain the identity of any other witnesses known by that parent. Corroborating evidence can be asked about. Essentially, the hearing (such as for temporary orders) can be useful as a de facto criminal case deposition, that can assist the criminal defense attorney prepare their case.

Another purpose of the Family Law case hearing is to state scenarios to the witnesses for the prosecution, and ask them “if that wasn’t really what happened.” If and when they deny it, they can be questioned about that scenario, such as relating it to other evidence put forward in the case, to ascertain evidence that is consistent with the scenario that we put forth. Their responses can reveal weaknesses in the cases being made against our client by the prosecution and their opposing spouse.

And, our questions allow us to put forward a version of events for the court to consider, without our client having to testify. All witnesses can be asked about the loving relationship between our client and the children. Activities that they engage in together can be asked about. They can be asked to admit that the children would likely miss seeing our client, if possession and access were to be denied. The focus of the questioning that we want to leave with the court is how, the best interest of the child(ren) will be served only by allowing them to have a robust relationship with our client, through plenty of frequent possession and access, despite whatever, the accusations being made against our client by the prosecution.

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