Chapter 27 - § 27.2 • PRACTICAL CHALLENGES OF CRIMINAL LAW IN FAMILY LAW CASES

• Jurisdiction: Colorado

§ 27.2 • PRACTICAL CHALLENGES OF CRIMINAL LAW IN FAMILY LAW CASES

The interaction between these two disciplines of law is complex and often presents significant practical challenges.

§ 27.2.1—Confusion Caused by Simultaneous Proceedings

There may be several related cases pending in different venues, including a criminal case and mandatory protection order, a civil restraining order, a domestic case, a dependency and neglect matter, and a juvenile filing, all of which may impact each other and may require the services of more than one attorney. This will certainly be true where the criminal case involves some accusation of family violence, and is often true even when it does not. Criminal proceedings involving allegations of family violence complicate family law cases in a variety of ways. Families may be separated, communications between spouses may be restricted, contact with children may be limited, and the financial demands of separate households and increased attorney fees may be staggering.

Forums may include family court, criminal court, and child protection proceedings through a dependency and neglect (D&N) case. The parties, and their children, may be interviewed and required to interact with numerous governmental entities, including the police, district attorney, victim witness services, courts, probation, pre-trial services, and Department of Human Services. Each entity has its own functions, priorities, and procedures, and the various entities do not necessarily communicate with each other.

A D&N case will enlarge the number of entities and parties involved with the family and can be an additional stressor. A D&N case is a civil action to protect a child from abuse and/or neglect, filed by a department of human/social services (department) in the county where the child resides. Legal and/or physical custody of involved children can be transferred from the parents to the human services department, and the child may be placed with a parent, relative, or foster parent. The D&N court has exclusive jurisdiction over the child; therefore, the dissolution of marriage court will not enter any orders pending certification of the D&N case into the dissolution case. The D&N court must appoint a guardian ad litem (GAL) to represent the best interests of the child during the proceedings, which can be extensive in number. C.R.S. § 19-3-203. A GAL has the duty to independently investigate the situation and make recommendations that are in the best interests of the child (which may not coincide with the child's wishes). Pursuant to L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013), the court must also appoint an attorney to act as counsel for the child if the child has a patient/therapist privilege or is facing contempt of court. Counsel for children have a traditional attorney-client relationship with the child and a duty to represent the child's wishes. See Chapter 33, "Family Relationships," for a comprehensive discussion of dependency and neglect.

Evidence adduced in one forum may not be admissible in another forum. For example, no formal admission made by a respondent in open court or by written pleading filed with the court in a D&N case may be used against him or her in any criminal prosecution, except for purposes of impeachment or rebuttal. C.R.S. § 19-3-207(3). This exception for use as impeachment or rebuttal can potentially be extremely important in a criminal case, and is an example of why a family law lawyer must consult with a criminal lawyer when such cases exist simultaneously. However, statements made by others during the course of a D&N case may be used in a criminal case, unless the D&N court is requested to rule otherwise and specifically does so after a hearing. C.R.S. § 19-3-207(1). The availability of this unusual power of the D&N court to prohibit use by a criminal court of "testimony obtained pursuant to compulsory process" in a D&N proceeding is an extremely important tool, and one that family law practitioners need to be prepared to discuss with criminal lawyers involved in a case because the natural inclination of criminal defense lawyers is to prohibit their clients from making any statement in any forum for fear of its use in a criminal court.

A family law practitioner should also be aware that the manner in which information among the various entities is shared may have a substantial impact on all parties involved and may result in inconsistent orders. The most common example of this potential problem is the overlap between civil and criminal protection orders.

Criminal Protection...