Sudden tragedy in a high-conflict family matter is the nightmare scenario for both attorneys and judges when criminal law and family law interact in Texas.
In 2001, for example, a Dallas man shot and killed his two little girls while their mother listened on the telephone. It was an evil act of revenge against his ex-wife carried out during scheduled custody with his children. John Battaglia is now in a well-deserved cell on death row for this horrific crime.
Few cases represent a more complete breakdown of the legal system, but many interactions between criminal law and family law feature people operating in an aberrant manner. The two practice areas address the needs of society in very different ways.
Criminal law is designed to identify and punish wrongdoers for past behavior. Family law is much more forward-looking, using past behavior as a guide to how litigants can help them-selves and their families operate more productively in the future. A dependable, well-meaning parent before the divorce is likely to behave that way after the divorce unless circumstances change. It doesn't always work out that way, but that's the theory.
Because the criminal courts can incarcerate defendants or otherwise punish them, there are many more legal safeguards than in family law. 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 are proven by a lesser standard, a preponderance of the evidence. Parties have the right to hire the best counsel they can afford but are not entitled to counsel at all, and most family law matters are heard before a judge. While litigants can't be sent to prison for bad parenting unless that behavior violates criminal law, access to their children can be denied or restricted based upon what is in the best interest of the children 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.