Criminal offenses are punishable by jail or prison time and monetary fines, but they also have heavy “collateral consequences.” That is, criminal charges can affect other areas of a person’s life beyond what is written in the penal code. Most often people think of their criminal record, which will show past convictions or even unsubstantiated accusations when applying to a job or looking for a place to rent. Another devastating collateral consequence to criminal charges is often family separation. This can occur when someone is in custody, of course, but judges can also separate families through court-ordered bond conditions to stay away from a person’s spouse or home. When criminal charges drag on for months or even years, this can put significant strain on a relationship, present the risk of drifting apart over time, and negatively impact children of a marriage in which both parents want to reunite, but are prevented by the government. Fighting to keep the family together is just one area in which Walker Fults fights as aggressively as possible for the best outcome for his clients.
How Does Family Separation Come About?
Most unwilling family separations occur when a client is in jail or prison, or else out on bond and under court-ordered conditions of bond not to have contact with the complaining witness in his or her case. That is, the judge orders a person have no contact with his spouse under penalty of arrest. It does not matter if the spouse contacts the client. It does not matter if the spouse approves having contact or reuniting. It does not matter if the contact is completely loving and non-threatening.
In many cases, a married couple (or parents of children in a stable relationship) might have a spat, usually after one or both has had too much to drink. Fights arise for the pettiest reasons, such as jealousy over a partner’s cell phone, arguments about household chores, or a loved one’s drinking patterns. The fight might escalate to the point where one party decides to call the police, or in some cases, neighbors call the police, meaning well. Once police arrive, the couple is separated, questioned, and usually one is taken into custody on charges of class C Assault by Contact (Family Violence) or class A Assault Causing Injury (Family Violence). In more serious cases, a third degree felony for Continuous Family Violence (two misdemeanors in a 12 month period) or second degree Assault: Impeding Breathing can be brought.
Once the Defendant is given bond and released, he or she is usually subject to bond conditions and in some cases an EPO, or emergency protective order, which prohibit contact with the victim. The only problem is that the victim may be a spouse, may want contact, and may want the whole case to just go away. Often couples fight in explosive fashion, then make up just as quickly. Keeping them separated is meant to let tempers simmer down and prevent another episode, perhaps a worse fight in the future.
However, courts know much less of the context of a couple’s relationship than the couple itself does. Walker Fults has often taken cases in which women say flat-out that they lied to the police out of whole cloth because they were jealous or wanted to “get back” at their boyfriends. Other times, women display such neurotic behavior that the man tries to leave, but the woman tears the house apart in a rage, then blames it on him. At the other end of the spectrum, there are situations in which women really do need to be protected. How is a judge, a prosecutor, and a defense attorney to know the difference?
How to Resolve an Assault Family Violence Case
The answer lies with the complaining witness. In some cases, there is actual video of the incident in question, or hospital records, or third party testimony which can establish an assault case. However, most the time, fights happen in private, and the only two witnesses are the man and the woman in question. The police did not witness it, and the judge, prosecutor, and defense attorney did not witness it. To resolve these cases with sensitivity for the alleged victim while also honoring the rights of the criminally accused and the mutual wishes of both the client and the complaining witness, a skilled criminal defense attorney must listen closely to what the complaining witness says, and what she wants out of the case. When working these cases, it is best to ask open-ended questions of the complaining witness, allowing her to describe the events that took place in her own words. It is also important to understand what she wants, and what she is prepared to do in the event of a trial. Commonly, women recognize that the fight was mutual, and that both people involved probably handled themselves in a way that was not ideal. (It is hard to fight a wall.) Very often, the women involved want the men released, to return to work and the status quo, and to lift the no contact provision as soon as possible.
The complaining witness has the answer for how to resolve an assault case. If the complaining witness wants the case to be dismissed, then the State will almost certainly not be able to make its case at the end of the day and the defense attorney should stand firm. If the complaining witness wants to testify against the Defendant, then odds are he really did something bad, and the defense attorney should negotiate, pushing his client to do whatever the State and complaining witness want to resolve the case in his favor. Being able to identify what kind of case it is and what approach is best is critical to obtaining the best result.
When Bond Conditions and Protective Orders Hurt Rather than Help
After a fight, a couple usually feels an urge to apologize, to communicate what each party was feeling, and to make intentional efforts to repair the hurt that was caused in the fight and reconcile. Human beings are very imperfect creatures, and any couple who claims they have never had a fight of any kind isn’t being honest. What if bond conditions prevent this healthy healing from taking place? What if a person bonds out of jail, but is instructed by court order not to return home, not to see or communicate with his spouse, and not to initiate contact of any kind? When getting married, spouses take an oath to love and honor each other, not to abandon each other. Stay-away provisions can cut a family unit in two, normalizing distance, allowing resentment to grow instead of forgiveness, and pushing people further apart. The tragedy of this government over-reach is painfully accentuated when children are involved. In that case, a state of affairs resembling a de facto divorce is imposed by the government onto a couple, neither of whom ever asked for it.
Fight to Keep the Family Together
Sadly, courts and prosecutors alike can sometimes treat the family bond like a dispensable consumer relationship. The best course of action is aggressive representation to achieve the desired outcome: the best result possible on the criminal case, and the fastest possible reconciliation of the couple. Only through reunion can the couple make concerted efforts towards the ultimate goal of familial harmony.
To achieve maximum results, an aggressive criminal defense attorney should interview the complaining witness as quickly as possible. A wise attorney will remind the complaining witness that the Defendant misses her desperately, wants to see her again, and wants to make everything right, but is under strict court order not to engage in any communication. The Defendant should then do everything in his power to prove to the spouse that he takes full responsibility for his role in the conflict and is committed to a plan of action to remedy the pain he caused. Through this approach, the complaining witness may ask for family reunification. At that time, the attorney should file a motion for modification of bond conditions, which can be done the same day if the State agrees, or after three business days if the State requests notice. (Prosecutors sometimes request notice merely to delay the result they are fighting against, not because they are too busy to interview the wife who may be waiting to see her husband again.)
Walker Fults Can Help with Any Assault Case
Walker Fults has extensive experience representing clients charged with the most serious offenses, including assault family violence, aggravated assault, assault strangulation, and related assault offenses. His dedication to obtaining the best results for his clients is matched by his conviction to keeping the family together. Call 214-838-0557 today to schedule a free consultation with Dallas area criminal defense attorney Walker Fults.
