LEGAL EAGLES:why r fam crts&crim crts diff in terms of rights of accused?

[chomskysright]

thanks for any insight you can give.

It appears, as assoc w/ a client of mine, that rights were violated in terms of in family court, the accused is assumed guilty. Even the petition (?: I'm not an attny) papers differ in terms of stating things like "did commit" etc.

My understanding is that within criminal court such would have to be proved and not assumed.

Any references greatly appreciated. thanks much.

[Blue_In_AK]

1. This is my 3000th post which I was going to save for

something profound, but I believe the answer to your question is that in criminal court the standard of proof is "beyond a reasonable doubt," while in family court it's "clear and convincing," a slightly lower standard.

Here's a link

http://www.lectlaw.com/def2/s217.htm

[DefenseLawyer]

2. One is civil, one is criminal.

A divorce proceeding is civil, between two individuals. The outcome will result in a dissolution of the marriage contract and some division of assets in most cases. A criminal proceeding has the government as a party, and can result in someone's freedom being curtailed. The Constitution protects criminal defendants from the power of the government by granting the right to a jury trial, the presumption of innocence, the right to testify or not on your own behalf, etc. In a civil matter the person is granted the right to bring his case and the right to due process. There is no "accused" in a civil case, although the divorce petition you have seen undoubtedly makes lots of accusations. Even in divorce court there is still a burden of proof however. Just because it is alleged by a party it will still ultimately have to be proven to the court, although the burden of proof is a "more likely than not" standard as opposed to "beyond a reasonable doubt".

[theboss]

5. I'm not sure this is a burden of proof question though

I re-read the question and it sounds like he's angry with the pleadings. Or not. I'm not sure.

[theboss]

3. Different standards for civil and criminal proceedings

But I don't think that's the issue. I think the issue here is likely the rules of evidence. Or possibly the rules regarding the pleadings.

I really don't understand the question to be honest. Can you be a little more specific?

[chomskysright]

7. some particulars re: the case: thanks for your help

I am disgusing some of the particulars re: confidentiality issues.

a father is accused of sexually molesting his daughter, now 16.5 yrs old. He is accused by Department of Social Services re: investigation which was bought about by caseworkers who appear to be working out their own childhood traumas, frankly. This took it into the family courts. The charges were associated with an initial hearing which terminated, for however long, parents' rights. The document I looked at stated that the father 'had sexually molested so and so from the ages of...."

The parents are not able to speak to the daughter; hear about how she is doing; pass any messages to the daughter. She is in foster care in an unknown place. No mental health person will speak to the parents about the daugter. The psychiatrist will not speak to them. The child's therapist will not speak to them except to state, "when she's ready I'll tell her you were asking about her and let you know how she is doing."

Parents have good judgment. This all concocted as re: an idiotically derived system which has not infrequently run amuck in this rural county.

The father is accused of these actions as having occurred from child's age mid-childhood. No forensic evidence. NO reports re: any other DSS. Charges were drummed up re: the step=sister picking the 16.5 year old daugther up at school on afternoon. That step-daughter does not like the step-father (who fathered the 16.5 yr old child). She, I believe, advanced to the 16.5 yr old, notions of abuse. The 16.5 has been under psychiatric care and is not stable. She has been suicidal quite recently. The family is terribly poor.

Court appointed attny given to the father. Good person: understands that this is bullshit. HOwever, intention is that rather than fight Department of Social Services, you ignore them. You do what the court tells you to do, but you ignore DSS. He and wife have a 18 year old brother of the 16.5 daughter living w/ them. Father is afraid that 16.5 yr old daugther, in her instability, will say something---anything---about the brother and there is no evidence there in any way.

It appears from the so far postings that:

there are diff standards of evidence in fam crt vs crim crt. That being said, I do not understand why a priori (to any trial; so far there is only this hearing wherein parental rights were removed) speculations were utilized as evidence). There is no evidence. There is only hearsay by unknown but suspected instigator which is 21 year old step-sister who was driven to the Department of Social Services (she is not the legal guardian of the 16.5 yr old dauther) and then, assumably, DSS engaged in what can be a notoriously iffy gathering of 'statements' from 16.5 yr old.

I know this family very very well. During the hearing, though I was present, I was not allowed to speak re: these matters...to rebutt with my experience as professional, what I had (not) seen.

Why? due to it being a hearing?

It seems like a 'severe' move to cut off parental rights completely, w/o evidence, only on the statement of the (manipulated, to my mind) 16.5 yr old child.

I sense that DSS is being given 'special status' re: what they 'say' happened.

Further suggestions?

[theboss]

10. Still a bit confused

Let me piece together what I think happened, because the history is confused. Keep in my mind this is nowhere close to my specialty and I am only recalling things from a long-ago family law class.

1. It looks like the father was accused of molestation. The state agency swoops in and pulls the child out and conducts an investigation. They determine that the charges have merit.

2. At that point, it seems like there was a hearing before a judge where either a) a guardian was appointed for the child, b) the parental rights were terminated, or c) both. I think there needs to be an actual trial to terminate parental rights and the burden is higher than preponderance of the evidence. But I'm not sure. It sounds to me like the judge decided there was enough merit in the charges to suspend parental rights and cut off contact, pending ... something. What...I'm not sure.

As for why your friend couldn't mount a defense....I think this is hearing is essentially the family court's version of a grand jury. Basically, it makes no sense to charge a parent with abuse and then leave the children with them, pending a trial.

So, like a prosecutor in a grand jury, the state gives enough evidence to show the validity of their case and gets the child removed. Like in a grand jury, the father (like a defendant) presents no defense. But something is going to happen next, I am almost positive. I would think that the termination of parental rights is temporary, pending...something.

3. Is the father going on trial for these accusations? At that point, you and anyone else can testify in his defense. If he wins there, he gets his daughter back. If he loses, he goes to jail and then his parental rights will probably be terminated at another hearing with the same judge. The conviction will be a prima facie basis.

4. Even if he avoids conviction, he may still face trouble with DSS. But the child is nearly 17. By the time it all comes to pass, she will be 18, I would guess.

[speedingbullet]

4. Civil vs. Criminal Cases

There are many differences: a criminal case which is brought by the government against a citizen, a civil case is often brought by one citizen against another. The Bill of Rights in our Constitution protects the citizen from the government. In other words, it limits what the government can do. Most of the protections are found in the 4th, 5th and 6th Amendments, a few from the 8th and 14th.

A criminal case is not supposed to be an even playing field. It is supposed to be hard for the prosecution. this is because the government should bear the risk of a wrong decision. We would rather have the guilty go free than the innocent be convicted. In a civil case it is supposed to be a level playing field, not favoring one side over the other.

[chomskysright]

8. this is not a civil case, however, it is a criminal case. see my note

[theboss]

9. This was not a criminal case

This was a hearing to determine the best interests of the child. No charges appear to have been filed against the father yet. The hearing was just a decision on the parental rights. I'm guessing that criminal charges may be pending.

I'm not an expert in this field and am trying to compose an answer to your above question.

But let me say - and this is no insult - you are really out of your depth, I think, and need to get your friend a qualified family law attorney.

[DefenseLawyer]

12. Actually a family law attorney might not be what he needs

if he is being accused of child molesting it is likely that criminal charges are being contemplated. A family lawyer can certainly deal with a custody question, but the bigger issue may be having to defend himself in criminal court. I would certainly consult with a criminal defense attorney before making any statements or testifying in family court.

[theboss]

13. Good point

I'm still trying to piece this all together in mind.

[DefenseLawyer]

11. Easy to see why it seems like a criminal case

because allegations of criminal conduct are being brought against against your friend. But this proceeding is not a criminal case, because he hasn't been charged by the state with a crime for which he can be brought to trial and sent to prison if convicted. However, the prosecutor may ALSO bring a criminal case based upon these same allegations, but in a different proceeding. (At this point your friend may want to be focused on this possibility, such that it is probably not in his best interest to testify or otherwise make a statement to the family court even if he could). This type of proceeding is one which allows the court to temporarily take a child out of an allegedly abusive situation. The burden is quite low for this, as it is not permanent and the idea is to protect the child. This problem with that of course, is that it means a very weak or even unprovable allegation may sometimes bring this result. Before the state can terminate his parental rights he will most likely be afforded a hearing at which he can present evidence and be represented by counsel.

[geek tragedy]

6. Whereas in criminal court the burden is stacked in favor of the defendant,

in family court cases the burden is much more neutral, and may even be stacked in favor of the petitioner if the accusation's involve violence.