Confronting the Fifth Amendment in Domestic Violence Restraining Order Cases: a Story of Competing Interests
| Publication year | 2018 |
| Author | Stephen A. Montagna |
Stephen A. Montagna
Stephen Montagna practices with Hodson & Mullin Attorneys at Law. He is a member of the Family Law sections of both the Solano County Bar Association and California Lawyers Association. Stephen is also an active member of the ABA Young lawyers division as well as a participant in a Domestic Violence roundtable that participates and contributes for the Family Violence Appellate Project.
During the first couple of years of my practice, it seemed that the only cases that came through my door involved domestic violence. It got to the point that some colleagues in the county where I practice started calling me the "DV King". Not quite the image I had envisioned when choosing to practice family law. The results were a mixed bag, but after a while it became quite evident that there was much more at stake when litigating these cases than just the issuance of a protective restraining order.
Most of you reading this article can attest to the fact that domestic violence in the context of a family law case has been covered in continuing education ad nauseam over the years. There is also a breadth of statutory and case law that identifies the wide-ranging effect domestic violence has on a wide variety of interest in a family law case. These different interests can be materially and substantially affected depending on the ultimate disposition of a trial or long cause hearing. In the end, potential outcomes can result in restrictions on a parent's custodial rights and access to their child1, exclusion from a family residence2, reduction or complete denial of a spousal support request3, as well as costs and fees associated with the litigation.4 But what happens when there is a pending criminal matter that stems from the domestic violence incident associated with your civil action? What potential impact does the pending criminal case have on the family law courts' ability to proceed with the civil matter?
Under the Fifth Amendment of the United States Constitution, a person cannot "be compelled in any criminal case to be a witness against himself." This protection is reflected in the California Constitution, Article I, section 15. When representing a client in a domestic violence matter that has related criminal charges pending, the last thing you want to do is inadvertently waive the client's Fifth Amendment rights. Those rights can be waived by...
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