What to do when facts change in your family law case, part 3: A parent’s commission of a crime

December 24, 2013

Family law gavelThe previous installments of this series have focused on changes that are, for lack of a better word, mundane.

That is not to say that these changes, such as a job change or a new marriage, are necessarily “boring,” but that they are ordinary in that they are generally things that the majority of people will experience in their lifetimes.

In our final installment, we’ll be discussing fact changes that are not quite as ordinary: what happens when one or both parents commits a crime?

Although you will never want your client to commit a crime during a family law proceeding (or immediately prior), the magnitude of the impact that the commission of the crime will have on your case depends on two factors:

  1. The seriousness of the crime; and
  2. Whether the crime has affected the children, and, if so, the magnitude to which the children were affected.

In order for the commission of a crime to seriously impair your client’s ability to succeed in his or her family law case, the crime committed must be relatively serious, and it must have affected the children in some way.

I’m not saying that a parent’s commission of a crime is not always serious, but in order for it to have a significant impact on the family law proceedings, the crime must rise to a sufficient level of seriousness.

Of course, what qualifies as this level of “seriousness” is – much like most things in family law – a fact-sensitive question.

For example, if a parent is arrested for drinking while drunk, that alone may not be enough to impact that parent’s case to a significant degree.

If, however, that parent has a history of such arrests, the court may take note of the most recent arrest as evidence that the parent has a drinking problem and should seek treatment.

Let’s look at the second factor using this same example: Let’s say that the parent has this arrest and only this arrest.  But what if the parent was pulled over during the time that he or she was supposed to be watching the children – or worse, while the kids were in the car?

This is clearly a very egregious commission of a crime in the family court’s eyes – and such a parent would be extraordinarily lucky not to have a child protection case opened against him or her.

If your client has committed such an act, your case is likely lost beyond any hope of salvage (you can try to mitigate the damage done by your client as much as possible, but the best that your client could hope for at that point would be supervised parenting time).

Crimes against the children – such as physical or sexual abuse – also fall into the category of “your client torpedoing the case beyond all hope.”  Thankfully, though, most crimes committed by parents aren’t this serious, and you, as the attorney, have some ability to help your client recover in court from his or her self-inflicted damage.

I don’t have the space in this article to go through an exhaustive list of the possible crimes that could be committed by your client and how to deal with them.

Instead, if your client commits a crime during a family law proceeding, use the above two factors as a guide to determine just how badly the crime is going to hurt your client’s case.  In addition, the factors should also help in framing your arguments as to why the commission of the crime shouldn’t be used against your client in the awarding of parenting time and/or custody.  That is, downplay the seriousness of the crime while emphasizing that the children were not impacted by the crime (or were impacted very minimally).

On the other hand, you have to make your arguments within reason (i.e. don’t claim that crime is a lot less serious than it actually is, or that the children weren’t affected when they very clearly were).  If a crime is unquestionably serious, or if the children were undeniably impacted, acknowledge as much.  But go on to lay out what steps your client has been taking or plans to take to prevent such an incident from occurring again.

Finally, if the crime is severe enough that your client is facing incarceration, the best possible outcome for your client, in the short term at least, is parenting time at the prison with the children (if your client has the misfortune to be facing incarceration in a federal prison, this may not even be a realistic option, since the prison may be across the country).

You should stress the importance of maintaining contact with the children to your client, because, assuming your client will be released sometime before the children turn 18, they are going to need to maintain as close of a relationship as possible during his or her prison stint to be able to have a reasonable amount of parenting time with the children after prison.

Ideally, you will never find yourself in a situation with a family law client who has committed a crime.  If you are, however, hopefully this article can provide some guidance.