How Serious is an Assault Family Violence Allegation in Texas?

Carrollton Criminal Lawyers | Carrollton, Texas

ANSWER:

The allegations of family violence, child abuse and/or neglect are all too common now in both the family law courts and the Criminal Courtrooms.  Our Carrollton Criminal Lawyers of the Davis Legal Group must often combine with our Carrollton Family Lawyers in an effort to provide comprehensive representation to clients.  In Child Custody cases these allegations are used as “Trump Cards” that are excessively played in family law litigation, yet well received by the courts, in Dallas, Collin, Denton, Grayson, Kaufman and Tarrant County. The obvious reason for family litigants to allege assault family violence and/or child abuse claims is that the Texas Family Code mandates that if there is a history or pattern of family violence (which includes any form of child abuse) committed by a parent in the 2 years preceding the filing of a child custody or divorce suit, the court is prohibited from naming both parents as Joint Managing Conservators. Instead, the court must name the parent that supposedly didn’t commit the alleged violence (or abuse) as the “Sole Managing Conservator,” thereby giving that parent child support, all the decision making rights for the child, and no geographical restriction, which means they can live wherever they want with the kids.

I have represented clients on both ends of family violence, abuse and neglect allegations. In my experience there are certainly cases in which terrible acts of violence and abuse have occurred during the relationship, but those cases in which some form of egregious abuse or violence occurred are few and far between once all the facts are presented. Through the years of litigating both family law and criminal defense cases in Dallas, Collin, Denton, Grayson, Kaufman, Hunt, Tarrant and surrounding counties I have observed that an overwhelming number of these family violence/assault/child abuse cases are completely baseless or exaggerated at best. Nevertheless, exaggerated and baseless claims of abuse may are often enough for a criminal prosecution to ensue or for a parent to lose custody of their children. Believe it or not, a simple “he said / she said” allegation is enough for a court to name one parent as a sole managing conservator based on the subjective opinion of a judge who believes that the parent alleging the family violence / child abuse appears more credible than the accused; a very sad and frightening reality.

Many unsuspecting parents just assume that a false allegation like this can’t happen to them. After all there has to be proof, right? Doesn’t something more than just a “he said, she said“ have to be required? Sadly, no. The belief that people don’t lose their children or go to jail over baseless “he said she said” claims is just a myth we tell ourselves so that we might function in society and interact with other without fear of false accusations. Ultimately this myth helps us maintain faith in our justice system and trust in law enforcement. When we hear these urban legends of some purported “innocent parent” losing possession of their kids or even facing criminal prosecution over nothing more than a “he said she said” allegation of family violence, abuse or neglect, we routinely dismiss these stories and rationalize them– as our brains excel at doing –in order to calm anxieties and believe that there must be more to the story or that something like that is a fluke and won’t happen to me or my loved ones; just like we tell ourselves we won’t have a heart attack, get cancer, or maybe, even die. That just happens to those unfortunate few, not me or my loved ones; until… it actually does.

So what then? What do we do when our spouse is claiming we beat them, or pulled a knife on them one night, or that we have abused or neglected one of our children in some way? How do we respond when our spouse’s attorney has us on the witness stand attacking us with fictitious or grossly exaggerated claims of violence that occurred one night nearly a year and a half ago during a heated argument which make us appear unstable and dangerous? What do we do when our spouse calls the police after an argument and claims you shoved her and – after a bit of coaching and leading questions from the responding police officers – that you put your hands on her neck causing the “constriction of her airway” leading to your arrest for a 2nd degree felony Assault Family Violence? How should we respond when the police bring us in to get our side of the story, you know, so the detective can get the facts straight before the case is “out of their hands” and they can no longer “help you?” What do you do?

Well… You have two options. 1) Do nothing and hope justice prevails (this is the option that many of our society’s mentally ill and impoverished citizens have to take because they cannot afford a good family or criminal defense lawyer) or 2) you can fight for and demand your own justice and protect your rights. But, make no mistake about it, if it were me or one of my loved ones facing similar allegations waiting for justice to prevail would not be an option at all. It’s a roll of the dice.

The belief that our law enforcement officials are driven to “get to the bottom of the case” and “uncover the truth” is no longer a reality, it died a long time ago and, to an extent, I have doubts if it ever existed, but what I do know is that it’s not something you should rely on. Do you really believe that our law enforcement officers, who rise through the ranks and receive recognition by the number of arrests and convictions they participated in, are motivated more by sense of moral duty to enforce the law and protect justice or by their own self-interests and their obligations to take care of their own careers and families. Law enforcement officials are in the business of arrests and convictions. That’s not their fault and doesn’t necessarily mean that the officers are bad people, they are just playing the role that our society has assigned them. Similarly to the law enforcement officers, you have the District Attorney’s Office whose attorneys receive recognition not by dismissing frivolous cases or seeking to rehabilitate defendants, but by winning cases, getting convictions, and highest punishment the law allows for the charge. Ultimately, the district attorney doesn’t really care if a defendant is “over charged” for a crime or even convicted of a crime they didn’t commit? That’s not their concern. They are also just actors playing their part they’ve been assigned. The guilty or innocence of a defendant isn’t their main concern once they are assigned a file to prosecute. They have the same amazing ability to rationalize in their brains that “they didn’t convict a person, a jury did” and that’s as far as the inquiry goes sometimes into whether the defendant is not guilty. If there was a real burning desire for justice to prevail at the district attorney’s level in the system, why then do some District Attorneys offices seem to have an unspoken “No Drop Policy” which means, they don’t drop cases once they are filed by the police? I know this for a fact because when I was a young attorney needing a job I interviewed at a certain district attorney’s office in Texas and I was told by a prosecutor that “we don’t drop cases. Instead get them to plead to something and if they won’t, take the case to trial even if it’s not the best case. If you’ve never lost a case, your just hunting cows so don’t be afraid to try a weaker case.” At the time, I was offended by this comment, but now days I realize that this prosecutor was just stating something that had either been told to him or something he internalized from playing his role in society. Hopefully, there will come a time when the system gets an overhaul but until that time, we have to play by the rules of the game and anticipate the moves of the other players. You have to play to win, and hoping for justice to prevail is a terrible game strategy.

Facing the allegation head on and fighting it as hard as possible is the only way to prevail in most cases. Fighting takes many forms and is often displayed more by restraint than outward actions. This is why choosing the right criminal defense attorney (one with Family Law experience as well) is crucial to your case and the ultimate outcome both in the family law court and criminal court. You need to be prepared to take your case all the way to judge or jury to clear your name. You need an attorney who will with you no matter what, even when others people in your life walk away from you. You need the assault family violence lawyer who will give your case the attention it deserves, an attorney that will have your case on his mind frequently to hone his arguments and defenses because you are a person; not a file in a brief case.

Use caution when seeking out the lawyer you think is chummy with the prosecutors or a judge. Most family violence and abuse cases won’t be dropped and taking a plea bargain is often not an option for your possession with your children, your reputation, and your career. Moreover, a judge’s record is paramount to their ability to hold on to their office. If a judge appears soft on assault family violence cases, they know in the back of their minds, it will be used against them during the next election year. The “Chummy Lawyer” is useful when a person needs a good plea on a drug case or probation on some other petty crime, but not in the assault family violence arena. There is no substitute for an attorney that is ready and willing to go all the way to trial with your case. This is what makes the prosecutors rethink their positions. They don’t like to lose trials, but they love taking plea bargains. That’s what it takes, and that’s what defendants and parents deserve who face these assault family violence allegations. You have to be ready to take justice for yourself because no one is going to just give it to you.

If you find yourself in the midst of an assault family violence case either in a Family Law or Criminal Defense setting within Carrollton, Dallas, Denton, Frisco, Plano, Ft. Worth, Richardson, Kaufman, Rockwall, Sherman, Greenville, or any other city within Collin, Dallas, Denton, Grayson, Hunt, Grayson, Kaufman or Tarrant county, contact our Carrollton Criminal Lawyers and Family Attorneys for a FREE case evaluation (972) 424-6800.  Written by licensed Collin County, Texas Attorney Nick Davis.

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