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When Family Law Can Become Criminal

On Behalf of | Sep 19, 2016 | Criminal Law, Family Law

Clients often question whether a spouse can be charged in situations such as child custody violations and domestic disputes. In fact, there are situations when domestic disputes can also be grounds for criminal charges.

Scenario 1: Protective Orders

In divorce proceedings, a District Court issues a protective order against Spouse A due to the belief that the Spouse B may need protection from the former. Spouse A decides to visit Spouse B without authorization, but no problems arise as a result.

Can Criminal Charges Ensue?

Violation of a protective order is a crime that may result in imprisonment or fine or both. Therefore, Spouse B has the option to press charges. Further, if there is evidence of repeated violations, a State’s Attorney may choose to pursue criminal charges against Spouse A. This behavior may also be grounds for harassment, which in turn can result in civil charges.

Scenario 2: Neglect of a Child

A child is brought in to a healthcare professional with bruising and injuries consistent with that of domestic abuse. The healthcare professional consequentially has a responsibility to notify Child Protective Services (CPS). Upon conducting an investigation CPS finds that there is evidence of child abuse resulting from neglect.

Will Criminal Charges Be Filed?

Neglect means the intentional failure to provide necessary assistance and resources for the physical needs or mental health of a minor that creates a substantial risk of harm to the minor’s physical health or a substantial risk of mental injury to the minor.  A person found guilty of the misdemeanor of child neglect and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 5,000 or both.

Child abuse, on the other hand means physical injury sustained by a minor as a result of cruel or inhumane treatment or as a result of a malicious act under circumstances that indicate that the minor’s health or welfare is harmed or threatened by the treatment or act. A parent, family member, household member, or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not cause abuse to the minor that results in the death of the minor or causes severe physical injury to the minor. A person who is found guilty of the felony of child abuse in the first degree is subject to imprisonment not exceeding 25 years or if the violation results in the death of the victim, imprisonment not exceeding 40 years.

Scenario 3: Non-Payment of Support

Spouse A and B find themselves in a bad divorce, in which the court orders Spouse A to pay child support to the other parent. Spouse A moves out of state and remarries, after which they decide not to pay child support to their former spouse anymore.

Grounds for Criminal Charges?

In this scenario, choosing not to pay child support is not only a crime, but a federal crime at that. The Child Support Recovery Act of 1992 declares that willful non-payment—for more than a year—of child support for a child who lives in another state is a federal crime, and is grounds for prosecution. A first violation of the Child Support Recovery Act is punishable by six months imprisonment and/or a fine. Subsequent violations are punishable by two years imprisonment and/or a fine.

Scenario 4: Travel and Custody Violations

Pending the terms of a custody arrangement, a spouse may not be permitted to travel across state lines with their children. In an innocent attempt to take their children on a day trip, Spouse A drives over state lines. Spouse B finds out, and contacts legal authorities to have their children returned.

Is this Criminal?

At the foundation of it, yes. Legal officials must respond to claims of a missing child immediately after being notified. However, it is at the discretion of a State’s Attorney to decide whether a parent was acting in blatant disregard of custody agreements and child safety, or whether they merely failed to adhere to the custody agreement. The former may result in the filing of criminal charges should authorities believe that a parent had the malicious intent to violate a custody agreement by concealing a child’s location or by not returning the child. The magnitude of the charges will come down to whether a State’s Attorney believes a parent’s actions were threatening to the wellbeing of the child. In the above scenario, a State’s Attorney may decide that the indiscretion of Spouse A was not of malicious intent, and that the case can be handled in civil proceedings.

The family law attorneys at SLH are well versed in the areas where family and criminal law may overlap. If you have general questions, or questions regarding your specific case, do not hesitate to contact the firm for more information.