Kevin
Welcome back to the Kelly & Kelly law podcast. I’m Kevin with Borealis Digital Marketing. Today’s episode is gonna be a little different, we’re actually bringing both sides of the law.
So I’m joined here with Mike Kelly, from the criminal defense department, and Ryan Kelly, from family law.
How are you both doing?
Ryan
Great. How are you Kevin?
Kevin
Good. Thanks for joining us today Ryan.
Mike
Yeah, glad to be here again. Happy to help Kevin.
Kevin
Thanks Mike. What we’re talking about today is domestic violence cases in Michigan. Specifically how one situation can impact in both criminal, and family court. So let’s start by discussing what triggers a domestic violence charge, Mike?
Mike
Yeah, so a domestic violence is basically referring to an assault and battery that is made different based on the nature of the relationship between the two people involved. Meaning that there must be either cohabitation, living together, they must share a child in common, or they must be engaged in a dating relationship, or have been previously engaged in a dating relationship. So really we’re talking about boyfriend, girlfriends, husband, and wives. When we’re talking about a domestic violence. And an assault, just by definition, is any unconsented touching. It doesn’t have to be a punch to the
face. It can be a flick to the air, it can be communicated without a body part with using an object, but essentially, any touching that somebody does not consent and that could be perceived to be harmful, annoying, disturbing, or harassing.
Kevin
Fair enough, and I assume like if there is an ongoing family law case like a divorce proceeding, or parenting time dispute or something of that nature, Ryan, I assume this can greatly impact this.
Ryan
Absolutely, and we always want to be concerned about our clients their partners, to some extent, and their children’s personal safety, right? Personal safety is the most important, especially when someone is going through any type of dispute in their house, or with their family. So we always caution clients, and because we’re lucky that we have Mike as part of our team here, we often bring him into family law cases as well, just because of his knowledge and expertise just because we bring him in doesn’t mean we think there is domestic violence, but it is nice to have that in-house to caution clients about the risks of both protecting themselves, but also protecting themselves from the allegation that there will be domestic violence against them. Because that allegation that they are in fact the person that has initiated that abuse could also be very damaging.
Kevin
Yeah, it’s good to have both sets of expertise in this situation in family court, does it react before, like, what’s the difference in family court, how it reacts, versus criminal court?
Ryan
So it’s just kind of depending on what happens in the process. Obviously in family court There’s always a concern and even as we’re going through part of the process domestic violence screenings putting in safety protocols. So there could be, even without a criminal case being filed concerns about domestic violence that could result in, exclusive use of the marital home, could affect a parenting time plan, or a personal protection order Which Mike handles a lot of those with our team as well, But if then there is a criminal case that goes on, then that may result in emergency hearing having been held
Or an ex parte, which is of here an order entered without notice, if those cases Happen while the domestic case is already pending.
Kevin
And I assume this is more common in like, high conflict divorce situations.
Ryan
Yeah, of course, right when families are in a high conflict divorce situation because of the dynamics of that of that relationship We do see more domestic violence, but we caution everybody about domestic violence on both sides Because we know that people do things when they are in conflict, that they would not normally do.
Kevin
Absolutely.
Yeah, appreciate the insight on that, and you mentioned “no contact orders”. Let’s talk about that for a moment. Into the criminal side first. Can you talk a little bit about “no contact orders” versus “PPO’s”? I think that’s a common point of confusion Mike.
Mike
Yeah, and I think an important part that I want to highlight in reference when we’re talking about, you know, domestic relations to domestic violence where this really comes comes to be a relevant factor for both the criminal and the family side is when you’re talking about what’s going on in the house and
Although yeah, it commonly pertains to husband and wife’s boyfriend and girlfriends. It also affects any individual that has lived in the same house together. So this can include children, stepchildren, all can be players in a domestic violence Equation and when a court is getting involved initially, there’s going to be some standard no contact provision when the Alleged offender is brought in and what they called a rain on the charge where they’re advised of the nature of the charge and bond conditions are set and as condition of you being able to stay out in the community they put certain conditions and one of them would be in no contact order and that could be of a couple different types. It could be simply that you’re not to call reach out to another individual, but also you may not be appear in the presence of that individual which could really affect you if you share a home with that person And you’re saying well, how am I supposed to go about my daily basis? Basis, how am I supposed to where my supposed to go and the court says well, you just got to figure that out, the court will also talk about not having any third-party contact, you know, can’t communicate through another person or through social media.
But really this is different types of contact And some of the same that you see on a PPO case where they’re really making a longer term order of no Contact and making it much more specific of the types of contact that can be allowed and Ryan can probably talk a little bit more about the circuit courts position in The hierarchy of courts with the district court being below the circuit court Being able to maybe carve out certain exceptions for communication and contact when it comes to exchanging children communication about children or about necessary terms that are required to bring the parties to a complete judgment So there are certain exceptions that could be carved out in a PPO case with a protective order, but won’t necessarily always be taken in consideration on a criminal case when somebody’s brought in a range and a standard no contact provision is put in place.
Kevin
I can see that being a really complex situation where there’s no contact order PPO and then there’s children involved.
Ryan
Right, and then if you have a divorce case that is pending, then the question is will you get permission from all of the judges? Participating in this and all of the parties involved to like Mike mentioned communicate The parties are still going to need to communicate about some things regarding their children. There’s a no contact order How can they do that? A common method we use as an app that can be monitored by the court? But there are certainly extreme situations where somebody cannot eat cannot even handle that, but so that really takes a unique crossover between the criminal aspects and The family court as well to ensure that the parties can discuss the issues that are important without involving their attorneys in every way, well still being conscious of any of the concerns on both sides of the allegations.
Kevin
Yeah, that’s that’s a very nuanced issue, and in your experience, are case is typically treated as separate entities, or is there a lot of or do the two worlds overlap?
Ryan
The two worlds, you’re right, are definitely going to overlap if somebody is facing a criminal case for a domestic violence, and they are going through a divorce at the same time, that is going to be an important case because somebody has charged that case and decided to move forward that there is evidence to be able to do so, so that will be important whether you’re the victim of that domestic violence or whether you’ve been accused of the alleged domestic violence. That’s why it’s really important that you retain counsel to work through that because that will have an important impact on your parenting time schedule that could be important even if the parties have been divorced 10 years and somebody is accused of domestic violence with their new wife, or their new partner, we might not even be talking about the same the same parties. We might be talking about just make up these facts dad is alleged to have been abusive against his new wife. That could have an impact on his current parenting time schedule with his former wife.
So these are really important issues that need to be addressed, with early retention of I would say criminal counsel, and family law counsel, to make sure that you are getting protected on both sides.
And I think it’s also to highlight too. I mean with with having good a good attorney involved something that’s familiar with some of the verbiage that’s being used to I mean I think what I’ve seen too is that sometimes you’ll get you know family law scenarios?
Where just the mere allegation of an offense occurring is being used as a conclusion, that it must have occurred and I and we have to kind of pump the brakes and remind them that you know we have a constitution in this country. Thank God, and under that Constitution, we would enjoy a presumption of innocence and since because somebody’s been accused doesn’t mean they are in fact guilty of that offense. Now with that said, the family court can still take that information into consideration, without reaching a conclusion that a crime has occurred, but still finding substance to some of the allegations
So it’s very careful that we’re we’re balancing “Hey, is my client gonna go into family court and testify about these allegations while we have a criminal case pending, or does is the judge going to understand in circuit court with a family law case, that it’s not appropriate, for a client to testify and address those things. It’s not appropriate for a client who’s facing a criminal investigation to undergo subpoena questions, or interrogatories, or discovery issues related to what happened on that offense that he simply can’t answer without compromising his criminal due process rights.
Kevin
That’s an important point Mike. How often does it happen where you both are retained for a criminal defense/family law case?
Ryan
More frequently than you may think right, on both sides, and that’s what’s interesting, right? There is also the defense attorneys perspective, although we have the idea of a prosecutor prosecutorial mindset, and also in representing the victim of a case when we are dealing with that. There are allegations about domestic violence that our client is the victim of then we want to be sensitive to that as we’re dealing with the case we need to think about that, when we’re attending court appearances or how our clients going to participate safely. We need to think about that when we’re preparing and planning for a mediation, or thinking about thinking about a trial and then the outcome of that criminal case could provide some structure, potentially, if say someone is found guilty or takes a plea, and they have certain requirements could also be checks and balances, to ensure that there is safety in the family law case.
So someone is, for example, required to drug or alcohol test, well, we can do that and use that in the family law case as well to ensure that the victim of the domestic violence is also receiving those safeguards.
Kevin
That’s a great point and you mentioned social media earlier. What are some common mistakes people make in these cases?
Ryan
Using social media at all, and talk about anything! I mean, I think Mike and I both tell people on the criminal and the family law aspect, right? These are these are personal private family matters, that we know are in the public forum in some way because these are public public hearings, but the last thing you want to do is broadcast your personal business. What do they say like anything you say can, and will be used against you?
Kevin
Yeah, don’t want to air your dirty laundry for many reasons. And yeah and social media posts can in fact be used in family court, isn’t that right?
Ryan
Absolutely. Absolutely. Same with text messages, right? So if you’re threatening somebody in text messages, or you’re threatening to take away their kids, you know, “you’ll never see them again”, bad bad idea, you know, you expect that your text will be put on a jumbotron in court and you will have to explain your behavior and if you can do that, great!
Kevin
That’s a really good way to look at it. So we’ve talked about some some of the messier elements. Going, let’s assume a great real-world scenario where both people do want to have contact again, and do want to be amicable, can orders be modified?
Mike
So absolutely in this scenario, you know the let’s start at the district court level where you have an alleged domestic violence. Maybe the parties also have, let’s just assume its boyfriend and girlfriend. They’ve also got a child in common, you know, they want to be able to communicate about maybe parenting time exchanges or even just talking about what juniors soccer schedule is gonna be like things like that? If the victim, or the alleged victim in this case, is able to come into court, or appear on zoom, however the court may allow it, and address the no contact provision and provide assurances that they’re okay with some limited form of contact, some restricted form of contact, the judge is more likely to approve that.
A couple caveats on that though, the judge will still keep in place. No assaultive, threatening, harassing, you know No aggressive assaultive behaviors. So any communication must be specifically about child, or about their agreed upon domestic relations matter. And also they can direct that the parties are able to follow any circuit court orders again looking at that hierarchy. If a circuit court order is saying “hey these people can communicate using our family wizard”, you know the judge may look from the district court may look to that and say yeah It’s appropriate for you to follow all court orders, including the one that requires you to use a communication platform. Like our family wizard. So yes, you can lift a no contact in the criminal scenario it’s more likely to be modified while the case is pending, and then if and when the case is brought to a final resolution to be lifted if the parties were to
get back and live together, I’ve had that situation or if the parties are able to move on, or even if it’s a dismissal, the court is still likely to keep some kind of temporary. Restricted condition in place just to make sure there’s no witness tampering threats, you know harassing behavior that could affect
You know the the integrity of the the criminal justice process.
Kevin
Appreciate the insight Mike. And at what point should somebody get an attorney involved for domestic violence issues, whether it’s a family court or criminal court?
Ryan
The sooner be the sooner the better right if you are in a coercive control relationship and you’re thinking about exiting and how that would look for you, should consider consulting with an attorney before it’s an emergency situation, and then obviously you don’t know if you would be charged with a crime, but immediately upon being charged I would think you would want to reach out as well.
Mike
Yeah, I’d say you know there anytime somebody’s having contact with law enforcement, you need to go in and talk talk to somebody who’s got a little bit more information there’s ways that an attorney can track your case, that can monitor your case. It’s always good when I get retained early that I can reach out to the officer in charge of the detective who’s leading the case, and say “hey, I want to just introduce myself as a representative of the person who’s under investigation, if there’s any questions or any updates on the case. Please let me know.” And then we were maybe getting ahead of, you know, the negative sides of when a case comes up that we don’t want police officers showing up at your work, we don’t want them showing up at your house, we don’t want them showing up in front of the kids, God forbid, they you know, they they pull you over a stake out your house in the middle of your parenting time exchange, because your your ex-spouse told them that’d be a good place to find you, and it turns out to do some embarrassing, traumatizing scenario that your children now need to go to therapy to overcome watching their dad being arrested outside of his own home. So get an attorney evolved early get us to monitor and track the status of the case and give you that early advice of the To-dos, and not to do, so you don’t end up obviously unnecessarily incurring any violations in the criminal or the family side.
Kevin
That’s sound advice. Well, it’s been very insightful hearing it from both sides, both family law and criminal defense. Thank you for making the time Mike and Ryan.
Ryan
Thank you, Kevin.
Mike
Absolutely. Glad to be here guys.
