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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