What should you do when your divorce case involves criminal allegations such as family violence, DWIs, substance abuse, or illegal electronic surveillance?
Scott Becker is a partner with McCathern Family Law. Before joining McCathern, Becker was the judge for the 219th district court in Collin County, Texas. As district court judge, he presided over matters from multimillion-dollar civil litigation cases to complex property and custody family law cases, as well as criminal cases. Consequently, he offers a unique perspective on the intersection of criminal and family law.
- How do you define family violence?
- What types of abuse fall within the realm of family violence?
- What evidence do you need to prove family violence in a family law case?
- What types of evidence of family violence are most persuasive in family courts?
- What do you see as the difference between a protective order from a magistrate or a judge and the advantages or disadvantages?
- What resources are available to victims of family violence?
- How often do you see drug abuse or DWIs in family violence cases?
- How often do you see recreational marijuana use affecting family law cases, and what’s your experience in terms of how judges perceive that?
- What, initially, are you concerned about with clients when it comes to their self-help and gathering evidence?
- Where do people go awry with using information and knowledge about criminal conduct?
How do you define family violence?
Family violence is a term defined within the family code. It’s also defined in the criminal code, but they use virtually identical definitions. Generally, family violence is any act of violence between a husband and wife, boyfriend and girlfriend, or romantic partners. So, if people are living together in a romantic fashion, they’re going to be covered by family violence. It also covers people’s children and parents.
If two strangers get into a scuffle, that’s assault. But if a husband and wife get into a pushing or shoving match, that’s family violence. The same is true if a father and a son get into it.
However, if it’s an adult son who lives outside the home then you’re looking at assault. That’s no longer a family violence situation.
What types of abuse fall within the realm of family violence?
Family violence requires some type of physical act or a threat of physical action. Although, you don’t have to wait for somebody to be physically harmed for a perpetrator to be guilty.
When putting together a case for long-term abuse, then financial, emotional, and psychological abuse might not fall into the definition of family violence as a crime or family violence for purposes of a divorce or a custody proceeding. But, it can bear upon the fact finder in determining if this was an abusive relationship.
When discussing divorce cases, there are all kinds of bad acts that happen in failing relationships. But family violence is defined by a specific code that requires a higher standard, and which comes with some additional protections.
Right. If the judge finds there’s merit and agrees there was family violence, the perpetrator legally cannot be a joint managing conservator of the children. The offending parent needs to have a bunch of restrictions put on their access to the children. Maybe they’re not allowed to see the kids without a supervisor in place.
Therefore, there’s a higher standard to prove family violence. If the other parent is actually violent, these restrictions are good, but if the parent is not, and it’s an exaggeration or an outright lie—which goodness knows can happen—then the parent who’s been lied about cannot see their children as much. In that scenario, the parent who misrepresented their victimhood monopolizes access to the children and begins to alienate the other parent.
Sometimes, we catch these cases many years later, and the damage is already done because of that original finding. So, we have to be very mindful that findings of family violence can have long-term, negative impacts.
It’s important for people to understand that the stakes are so high because the finding of family violence has such an impact on the case. Sometimes, people do try to use it as a strategic play. But there are high stakes, too, for the person who wants to make false allegations, correct?
A good lawyer can pull apart those false accusations, but one of the problems is having to hire a criminal lawyer in conjunction with the family lawyer you already have.
The criminal process runs on its own timeline, and it’s quite common for a person—let’s use a father in this example since that’s statistically more common—to find himself in a position where he’s at family court temporary orders proceeding with accusations of family violence being made against him. Meanwhile, the criminal defense lawyer is telling the family lawyer, “Don’t put him on the stand. We don’t want him talking.” So, you remain silent to the benefit of your criminal defense lawyer, but it may be really hurtful in your family law case because the family law judge is permitted to take your silence into account. It’s not like pleading the 5th.
That’s an interesting perspective and one that people don’t often consider when trying to confront these issues.
To clear up one aspect of family violence, if you’re being attacked first and you defend yourself, that’s not family violence. You’re allowed to protect yourself.
Regarding allegations and threats or even fears that people have, there’s some subjectivity involved in these situations. Something that might have been frightening to me might not be frightening to you.
What kind of evidence do you need to prove family violence in a family law case?
You certainly want your victim to be able to testify how they were thinking and feeling. The only person who knows what’s inside the mind and the emotions of the victim is the victim.
The credibility of testimony may come down to surrounding circumstances. For example, in a family violence case, let’s say the alleged perpetrator is a dad who weighs 110lbs. Mom, the accuser, is a triathlete who’s super fit and is clearly the more physically strong of the two. That’s just going to look weird.
Whoever’s making the decision—whether a judge or a jury—is weighing credibility, and looking at all the surrounding circumstances. Does it make sense that the mom felt afraid? Is it sensible or reasonable for her to be afraid in that situation?
What types of evidence of family violence are most persuasive in family courts?
Recordings are good.
It’s not helpful to come in with the “he said, she said” argument. There have been several occasions like that where I’ve sat on the bench and sized everybody up and thought, “Yeah, there’s a reason you two are arguing. You deserve each other.”
But then there are times when I hear a recording of a custody exchange or a phone call between the two parties, and one of them is cussing a blue streak and chewing up the other one. Meanwhile, the victim is just kind of going “okay” and not taking the bait and not giving as good as they get. That can be helpful.
But there are other times when you might hear a call like that, and you can tell that they didn’t start recording until after they had spun the other side up. They intended to get the other person all excited and amped up, and then hit the record button. As a judge, you’re not sure about the context and what led to the explosion.
I did not get magic powers when they gave me a robe. A judge can’t suddenly do things that other people can’t do. My ability to size up the credibility of somebody is pretty good, but I’m not perfect.
Initially, the judge is coming to the case with a blank slate, but as a lawyer, you’re invested in the outcome. So, it helps if you’ve got somebody in your practice or in your circle of friends and family who’s smart and who can provide you with an impartial perspective on your evidence.
Right. If you are in a family violence situation and your attorney is giving you a little bit of pushback, you need to know and understand that’s a good thing. We must be skeptical. We need to know whether the facts justify the belief because otherwise, you can end up in some hot water.
That first request colors the judge’s perception of your credibility for the rest of the case. So, if you’re firing off a bunch of exaggerated claims that ultimately don’t bear out, it hurts. The bulk of what the judges see is over-exaggerated, so they set a pretty high bar a lot of times.
You know, even if you aren’t in the middle of a family law case, there are other avenues to pursue a protective order such as through a magistrate.
What is the difference between a protective order from a magistrate or a judge and the advantages or disadvantages of each?
I’m not sure that there’s an advantage or disadvantage to either, functionally. The biggest difference might be that you can get a magistrate’s protective order without a lawyer.
The other difference that I can think of is that the issuing judge is the only one allowed to walk back that protective order and undo it. Sometimes, that protective order gets issued, and a week goes by and suddenly the victim realizes, “Oh wait, this is going to have X effect. I actually need that person to help watch the kids. I was just mad at the time, and I don’t really want that protective order any more.”
Well, when our clients have appeared before a district judge, they don’t have the authority to change their minds about it.
You work on a lot of these types of cases right now. The fact is that family violence is incredibly serious, and when it happens, it’s incredibly tragic. Unfortunately, I think we’re seeing that a lot more often on the news.
When I was a prosecutor in the Collin County DA’s office years ago, I met a prosecutor from the Dallas County DA’s office who was very experienced, and she had a rather gallows sense of humor. She referred to their family violence division as the “pre-murder division.”
And that’s the problem, right? When we don’t listen to people complaining about abuse, and we’re wrong, terrible things can happen. And that’s true for everyone in the system. That’s the fear. So that fear leads to protective orders being entered, sometimes, that shouldn’t be entered because a judge might be operating from a place of erring on the side of caution.
The people who are genuinely suffering from family violence are being done no favors by those who are taking advantage of the issue by making false allegations.
What resources are available to victims of family violence?
There are several available.
One of the biggest concerns if you’re financially captive and a victim of family violence is finding someplace you can go once you’ve mustered the courage to get away from your abuser. There are different family shelters that provide a place to live. These are typically for women and children. They’re a short-term fix; you can’t move in and stay forever, but it’s usually long enough to allow you to escape the abuse and begin to get your feet under you.
I think one of the greatest benefits shelters provide is counseling for the victim and the children to begin the healing process.
Let’s discuss substance abuse and DWIs. Sometimes you have people who are just not coping well with a dissolving relationship and are making bad decisions, and then other times you have much more extensive substance abuse issues.
How often do you see substance abuse issues in family violence cases?
You have a chicken and egg thing there, right? Are they abusing substances because their relationship is going down the toilet, or is the relationship in the toilet because they’re abusing substances?
I don’t know if I could give a percentage, but it’s certainly not rare. The typical substances are alcohol and prescription pills. The problem, especially if it’s alcohol, is often both partners engage in the practice, and each of them thinks the other one overindulges. They probably drank plenty together over the course of the relationship, and they each think the other is the alcoholic. Neither one of them wants to see themselves that way.
So, when we talk about the injunctions that a court will put in place, it would be prohibiting either party from drinking any alcohol while the case is pending that usually brings about a response like, “Oh, I didn’t want that.” Right?
It’s interesting because a lot of times what we see is “No alcohol while they have the children.” But it’s kind of a trick. The parties want a 50/50 custody agreement, but once you point out they can’t have any alcohol for the entire week that they have the kids, then it’s interesting to gauge the client’s reaction.
This strategy can also affect how lawyers and their clients arrange their agreements. Sometimes it’s a strategic plan to expose which of the parties has the greater issue with alcohol by increasing the number of days someone must go without it.
There’s also the use of Soberlink devices which monitor alcohol consumption.
The most important thing is to comply. If you’re under any kind of monitoring, then every time there’s a misstep, there’s also an excuse. I imagine from the judge’s perspective, that doesn’t play very well.
There is no excuse that our clients are going to come up with that the judge has not heard.
Another substance that comes up a lot these days is marijuana. It’s not legal in Texas for recreational use, but it is available just over our northern border in Oklahoma and in some of the other surrounding states. It’s easy to go on a trip to Colorado, and you’re hanging out with friends, and then suddenly you’ve got marijuana in your system.
How often do you see marijuana in family law cases, and how do judges perceive its use?
It depends on which county you’re in, and even within a specific county, it depends on the judge. Obviously, the more conservative and right-wing the judge is, the less likely he or she is going to be tolerant of marijuana use—even if it wasn’t used in violation of Texas law.
I see more complaints regarding prescription drug use than anything else. Some people take certain medications because they have a prescription for them. Adderall shows up as an amphetamine, which would look bad, but once you have the script, that’s cleared. But then we have this argument about whether they’re taking it responsibly. Are they following their prescription? Are they taking it in therapeutic levels? That’s a term I’ve heard in cases, and I think it’s something we made up as lawyers.
It doesn’t matter what the test results show. Whether they’re taking a little bit or a lot, there’s no such thing as a therapeutic level for that particular medication, which can be troubling because we know that people can misuse prescriptions.
This raises another issue which is that sometimes people are prescribed some very serious medication to help stabilize them mentally, and they’re not compliant. They’re not taking the medication that they should take. People may not realize that testing isn’t perfect. We can send you in for blood tests and for urine tests and hair and nail and all of that, but it doesn’t always tell us all the information we need to know for the full picture. People know how to game the system.
I think one of the things we look at that’s most revealing is what you were talking about earlier: behaviors. People who are eyewitnesses to those behaviors will ultimately impact your court case and your ability to be with your kids. So, let’s talk about electronic surveillance. It’s a scary topic for lawyers because it’s so easy to do surveillance on people, but it can be very muddy and very sticky, and the sanctions can be stiff.
What, initially, are you concerned about with clients when it comes to their self-help and gathering evidence?
The one that has scared me the most within the past year is recordings. It’s common for clients to record the other party during a phone call or to have their iPhone video running during custody exchanges because that’s where flare-ups happen. Texas is a one-party consent state which means that if you or I are having a conversation with each other, that’s not being recorded for a podcast, either one of us can give consent to record that private conversation. Recording somebody without telling them is certainly going to be off-putting, and while it may be creepy and shady, it’s not illegal, and it could be permissible.
If it’s a public setting like a graduation speech or coaches talking to their players on the sidelines, that’s not a private conversation. Where we start to have a problem is when parents start having children record the other parent without that parent knowing it. Minors are under the age of consent. We don’t let them sign contracts, we don’t let them vote, and we don’t give them the right to consent to recording.
So, if they’re doing that without telling the other parent, it may be problematic.
Even in situations where it’s clear there’s child abuse going on or manipulation.
If there’s evidence of child abuse, I think the law is probably not going to punish somebody, but if it’s just evidence of a parent being mean and yelling and calling them names and being the ugly parent, but not committing a crime, there’s a problem.
Going back to some of the other methods of surveillance, the geographic tracker was one that we used to see a lot. We don’t see that so much anymore—in part because our devices are already tracking everything.
That’s true, but any tracking without the other person’s consent is improper—whether they do it with a separate magnetic device or you’re tracking somebody’s phone location without their permission.
I see plenty of devices being advertised. I saw one just the other day that was being advertised as a way to avoid ever losing something again. You can put it on the fender or inside the wheel well of your car. I’m like, “Hmm…are people really losing their cars so often that we need to do that?”
I suppose these devices are legitimately useful in certain circumstances like for your keys or wallet.
But it’s not okay to put it in your wife’s wallet without her knowledge.
A similar problem we have with these issues is that when couples are married, they oftentimes have free reign on each other’s email accounts and bank accounts and passcodes to get into phones and stuff like that. That’s just what some people do when they’re married—they trust each other. But once you’ve gotten the divorce proceedings going, it’s pretty clear that you no longer have that level of trust.
I always tell our clients to change all their passwords and don’t make it something that the other side can guess. And I tell them, “Do not go rooting around in the other party’s stuff. You don’t have permission anymore. Even though you’re legally still married, you’ve made it clear you don’t want to be together anymore.”
I think we, as lawyers, need to be mindful and caution our clients about that. If someone can perform surveillance through some app, and you no longer want them to know where you’re at, you need to make sure you remove yourself from that app and remove them. For your kid— you have every right to find where your kid’s phone is. If by virtue of tracking the kid, you’re also tracking the other parent, it’s a detrimental side effect.
The other thing I see a lot is the cameras around the house. So, if you install them in your home and you both knew they were there…
Oddly enough, there aren’t as many prohibitions against visual recording. The audio recording gets people in the most trouble.
Just be mindful of what was installed, but I would say don’t go installing new stuff as you’re moving out. That’s not a good idea. Also, keep those cameras on the outside of the house.
Yeah, putting them in places where it’s just creepy is going to create problems.
The final thing I want to touch on a little bit is what to do if you’ve just found out that the other side may have committed a crime. Maybe you want to use that information to get your case settled.
Where do people go wrong with using information and knowledge about criminal conduct?
Civilians don’t have the same restrictions as lawyers. As lawyers, we’re not permitted to threaten the use of the criminal justice system to gain leverage in a civil proceeding. We can’t threaten to prosecute someone for family violence if they don’t give us everything we want with respect to the kids. If we relay that kind of offer as a lawyer, we’ve got a problem.
If we’ve learned that the other side has committed a crime, then the client can just report the crime. If the crime that we know happened is that the child was abused by one of the other parents—that’s assault. The parent who knows this can report it to the police, and the police can investigate the claim and turn it over to the DA’s office. If there is a crime, it’s prosecuted.
A client needs to decide whether to report a crime. As a lawyer, we should advise them, “Hey, if you do this, this is how it will impact your family law case, and I can’t be a part of the process. I can help you speak with the police if you want. I’ll be your lawyer in regard to that, but I’m not going to use the threat of reporting a crime to win a family law case.”
It’s important for people to understand that when you’re working with a lawyer, your lawyer should be abiding by ethical obligations.
We must be cautious.
One of the things that a victim of an assault case can do is execute an affidavit of non-prosecution wherein they can convey to authorities that they no longer want to prosecute for a crime. Typically, they will need to put together a better reason than just saying they no longer want to file charges because many legitimate victims of family violence get cold feet and drop these cases. Too often, the result is the perpetrator takes it further the next time.
So, law enforcement is typically looking for something more than just “I don’t want to prosecute anymore.” The victim must explain why. And you must be careful because if the victim says, “I just made it up,” now they’ve admitted to a crime of filing a false police report. But a lot of times they say it was an argument that got out of control, and they overreacted by calling the police, etc. Negotiating the dismissal of the criminal case in the context of the family law case is a big problem.
Lots of minefields here, and it’s so great to have an expert in both family law and criminal law to come and caht with us. Thank you so much. This has been great.