THE TENSION BETWEEN FAMILY COURT AND CRIMINAL COURT

BY M. J. Goodwin

While they have different jurisdictions and cover different cases, the Family and Criminal Courts sometimes overlap for the individuals involved.  This can be a problem for a litigant with cases pending in both Courts simultaneously as the approach needed for each Court is vastly different, yet the result of each case can have profound impact on the other case.  The tension arises as Family Court cases typically have some degree of urgency and need to be resolved quickly.  In Criminal Cases, both in the Summary Court and the Court of General Sessions, delay benefits the Defendant and can increase the chances of a charge being reduced or of obtaining a not guilty verdict.

A hypothetical example:  father is charged with a crime.  The nature of the evidence is a “he said/she said” case.  Based on the arrest, mother files an action in Family Court and is successful in her initial effort to have father’s visitation suspended.  A crucial piece of evidence in both cases is a computer generated message that father denies sending but that appears to have come from a device belonging to the father.  SLED obtains a search warrant and takes father’s electronics.  The reality is that it will take SLED many months to evaluate the evidence.

All of that evidence is relevant to both cases.  But the urgency only exists in Family Court.   Of course Father does not want to lose his visitation.   Every day without a child in one’s life is a day that can never be recovered.  But Father also does not want to be convicted of a crime.  If he is convicted, particularly if he is incarcerated, the conviction may impact his long term prospects of meaningful time with his children.

But in the interim, it’s painful.  Father has no time with his children.  This is a big picture/little picture situation.

Attorney understanding of the intricacies of both Courts and their impact on each other is crucial to a beneficial outcome for the client and the children.  In this hypothetical, one possibility is to immediately file for hearing and get a Guardian ad Litem appointed to represent the interests of the children.  If father’s crime has no relevance or bearing on parenting, then it may be relatively easy to reinstate visitation.  However, if the crime did have relevance to or bearing on parenting, Father may need to wait until resolution of the criminal charges before pursuing reinstatement of visitation because anything the father says in Family Court can be used against him in Criminal Court.