Criminal and dependency crossover issues in a family law DV matter

You have been hired to do a family law domestic violence restraining order hearing. If the parties have a minor child then there are two investigations that are going to create crossover issues for the restraining order hearing. The criminal investigation may influence the willingness of the accused to testify and the social workers' investigation may take the domestic violence restraining order hearing to a different court.

Here is how the criminal investigation may affect the restraining order hearing. Sometimes, the prosecutor quickly files a case and requests a criminal court protective order. See California Judicial Council form CR-160. It is a good practice to ensure that paragraph 14(b) is marked on the form to ensure that future family law court orders can be enforced without the necessity of seeking to modify CR-160 each time there is a new court order.

However, a more likely situation is a criminal investigation with no end in sight. The accused is going to ask for a continuance. Most judicial officers will honor this request but not indefinitely, especially if no charges are filed. However, the Court can still address other issues. To address other issues, it would help if your client can afford to file Request For Orders concerning child custody, visitation and support at the same time.

The existence of a criminal investigation does not allow indefinite continuances by virtue of invoking the Fifth Amendment right to remain silent. The Fifth Amendment privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory ... " Segretti v. State Bar 15 Cal. 3d 878, 886 (1976). However, the Court can go forward with the "disputed issues that fall outside the realm of criminal justice - matters of community property, child and spousal support, custody, and visitation" Slaieh v. The Superior Court 77 CA5th 266, 275 (2022).

Also, invoking the Fifth Amendment does not guarantee that the accused can refuse to take the stand and answer any questions. Marriage of Sachs 95 CA4th 1144 (2002), held that a party could not invoke 5th Amendment to protect against financial information disclosure at judgment debtor's examination. In examining the competing interests, the Sachs court relied on Fuller v. Superior Court 87 Cal. App. 4th 299 (2001); See Id. Marriage of Sachs at 1156. "[A] civil defendant does not have the absolute right to invoke the privilege against self-incrimination. ...A party or witness in a civil proceeding 'may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it. ... " Id. Marriage of Sachs at 1156.

"[A] trial court may compel the witness to answer only if it "clearly appears to the court" that the proposed testimony "cannot possibly have a tendency to incriminate the person claiming the privilege. '" People v. Cudjo 6 Cal. 4th 585, 617. (1993). However, asserting the Fifth Amendment right does not allow for a blanket refusal to answer. The Court is going to decide whether each particular question falls within the protection of the Fifth Amendment. Warford v. Medeiros 160 Cal. App. 3d 1035, 1045(1984).

The other investigation that is going to affect the restraining order is the investigation by the social workers. If the social workers decide to promote the investigation into a court case then the juvenile dependency court is going to take jurisdiction over the restraining order hearing. The only possible exception is if no children are involved in the restraining order hearing.

Once initiated, the juvenile court has exclusive jurisdiction to issue domestic violence restraining orders involving dependent children. Welfare and Institutions Code Section 213. 5, subdivision (a). The juvenile court's authority to issue such orders is expressly "in the manner provided by Section 6300 of the Family Code if related to domestic violence." Further, the juvenile court is authorized to issue orders "as described in Section 6218 of the Family Code," which sets forth the full array of protective orders authorized under the Domestic Violence and Protection Act. (See Welfare and Institutions Code Section 304.)

Ironically, it is often the case that social workers may opt not to promote the investigation to a court case if they see that the family law court is already protecting the minor children with monitored visitation and with placement with a parent that the social workers trust to protect the child. Whether or not a parent is willing to file a restraining order is often a test for the social workers. If one parent is not quick enough with filing the restraining order then the social workers are more likely to file a dependency petition.