The MSBA recently sponsored a webinar for CLE credit entitled, The Intersection of Family and Criminal Law: Protective Orders and Other Related Issues. The presenters were criminal lawyer Tara LeCompte, Forster & LeCompte, LLC, and family lawyer Jana Ponczak, Royston, Mueller, McLean & Reid, LLP. Both practitioners often work together on domestic violence cases and protective orders.
The focus of the webinar was Protective Orders. There was emphasis throughout the presentation on the importance of collaboration between family law and criminal law practitioners. As Ponczak said, “Family and criminal law are the closest of law cousins.” LeCompte echoed those sentiments and repeatedly urged her fellow members of the criminal bar to develop a good working relationship with a family law practitioner to be able to call on in domestic violence or protective order cases. Ponczak fully agreed.
Ponczak walked viewers through the protective order process by first pointing to the criminal statutes which enumerate what type of abuse is covered in a protective order: serious bodily harm, fear of serious bodily harm, assault, rape, or sex offense, false imprisonment, stalking, and revenge porn. LeCompte suggested the Criminal Pattern Jury Instructions are a good place to find elements for the requirements of the criminal statute.
Interim Protective Orders are granted by a District Court or Commissioner when courts are closed. It is common for criminal charges to be filed at the same time. There is a low standard of reasonable grounds for relief, and the order lasts for two days. The next step is for parties to appear before a judge at a Temporary Protective Order hearing which is often ex parte. The order is good for seven days, though it can be extended.
Both Interim and Temporary proceedings are rushed because of the time frame. The challenge is to get everything together and make decisions quickly. The CPS report is something that counsel needs to be prepared for and to fight from an evidentiary standpoint. Counsel will often not know what it says before it is presented in a hearing. LeCompte suggests asking opposing counsel to consent to keep it out of the record if the facts indicate that the report would be harmful to the client.
The next step is a Final Protective Order hearing. There is a higher burden of a preponderance of evidence. The order will last up to a year.
It is generally between the Temporary and Final hearings that a criminal attorney will be brought in, according to LeCompte. Their job will be to gather all of the info and understand exactly what’s happened up to this point. Is there a custody case? Divorce? Criminal charges? Protective orders are civil matters with criminal penalties if violated. LeCompte and Ponczak both say a client must understand that. Clients must also understand that the proceedings will have an impact on whatever collateral proceedings are taking place.
Ponczak says the question of whether a client testifies is one that could have a major impact on those collateral proceedings. She asks the question of whether a client can handle things on the stand. In her experience, a client on cross will feel the need to explain “everything,” and then the cross-examination becomes a deposition. LeCompte emphasizes that clients and witnesses must understand that what they say can be used down the road in any other civil or criminal proceedings.
A finding of fault can be disastrous for those collateral proceedings. In order to avoid that, a petitioner has the option of consenting. Avoid blanket consent, and be careful so as not to trigger criminal consequences if violated. There is also the option of a temporary agreement.