User menu

When Criminal & Family Law Interact

Thu, 08/24/2017 - 16:01 -- admin25

by Marie Briner

While criminal law and family law address the needs of society in very different ways, the two practice areas increasingly interact with varying consequences for the parties.

Criminal law is designed to identify and punish wrongdoers for past behavior. Family law uses past behavior to show how litigants and their families can operate more productively in the future. 

Because the criminal courts can incarcerate or otherwise punish defendants, there are many more legal safeguards there than in family court. Those include having to prove guilt beyond a reasonable doubt, the absolute right to a jury trial, the presumption of innocence, the right to counsel, constitutional protections against unreasonable searches and seizures, and the Fifth Amendment protections against self-incrimination.

Family law cases adhere to a lesser standard, preponderance of the evidence. Parties are not entitled to counsel at all, and most family law matters are heard before a judge. While litigants cannot be sent to prison for bad parenting unless that behavior violates criminal law, access to children can be denied or restricted based on what is in their best interest—a finding that is undefined and frequently varies from one court to the next.

Certain crimes can become central elements in a family law case, such as domestic violence, child sexual abuse, interference with a child custody order, or child kidnapping. Other severe problems may lead to criminal acts that adversely affect the family—substance abuse, mental illness, and driving while intoxicated. DWI can be both a personal issue that affects a family (for example, if children are in the car when the DWI takes place) and a crime.

The litigants in family law cases may allege criminal misconduct by the opposing party. Without solid evidence, though, the finder of fact may have no basis to believe the allegation. But a guilty verdict in criminal court will go a long way to rebut claims by a party that he or she is without blame.

While family court judges do their best to make decisions fairly, they often operate at a disadvantage. A family law litigant cannot fully defend himself in family court if he has a pending criminal case that has not been litigated in the criminal courts. In this instance, the judge will not know all of the facts. Perhaps the litigant will eventually be found not guilty, but that may not happen for years. The judge has to proceed knowing that the person is accused of the crime and make a decision about what is best for the child even when the criminal case has not been proven.

 Because these cases can be exceedingly complex, family law attorneys are often reluctant to take family cases with contemporaneous criminal cases. There can be a great deal of confusion over the issuance of orders that conflict. For instance, does the client follow a protective order issued by a criminal court which restrains him from contacting his ex or a co-parenting schedule approved by the family court that allows such contact?

Then there is the problem of access to family funds by a criminal defendant. When a criminal case and a marital dissolution case are being litigated simultaneously, conflict arises when the divorcing party/criminal defendant tries to take money from the marital estate to pay for his defense.

The battle lines are drawn even more sharply when the spouse or the children have been the victims of that crime. In this instance, two basic rights stand in opposition to each other. On the criminal side, the defendant has the right to engage his counsel of choice, in hopes of securing zealous representation and a fair trial. In family law, the division of community assets is basic to marital dissolution. Should the funds be available for this divorce process or used in the criminal defense of one of the parties?

While criminal law and family law often interact and collide, lawyers and the courts in Texas attempt to administer justice in a way that minimizes the amount of collateral damage. Sometimes we are successful, others not.

Marie Briner is a partner in the family law firm of Atkins O’Toole & Briner.. She can be reached at

Back to Top