The Intersection of PRE Work and Criminal Law

MDIC Luncheon Presentation

June 6, 2017

“The intersection of PRE work and criminal law”

Jim Keil, Esq.

Kevin Albert, Psy.D.

Please consider the following Scenarios:

A parent is charged with criminal child abuse prior to the 14-10-127 appointment. During the evaluation, the criminal hearing was scheduled for after the due date for the PRE report. The alleged perpetrator’s contact with the child was restricted per the mandatory criminal protection order.

During the evaluation, a parent was charged with child abuse and a parallel investigation was conducted by DHS. It was unclear as to whether criminal charges would be brought against the parent, or whether there would be a finding for child abuse.

During the evaluation, a parent was charged with third degree assault and harassment against the other parent, and violating the temporary protection order. As the child was witness to the altercation, the child was included in the protection order and the alleged perpetrator’s parenting time was ordered restricted and supervised at a visitation center.

The evaluator issued their report, a hearing was held, and the parties co-parented effectively over the following three years. The evaluator had no contact with either parent for three years. The evaluator received a request for their file by a criminal attorney who has a plaintiff in a civil matter that is suing one of the parents in the DR case.

The evaluator completed their report, the parties reached a stipulation, and, two years later, an assistant DA subpoena’s the evaluator’s file because one of the parents was charged in a criminal matter.

When do criminal matters come to play in conducting a PRE?

When there is a pending criminal case

That could impact the statutory criteria under 14-10-124 (obtaining a clear picture of what is in the best interests of the child) and 14-10-127 (impeding the ability to assess the entire family system)

One parent is able to discuss all of the issues, while the charged parent chooses not to
Criminal child abuse charges that restrict a parent’s time with the child due to a protection order

1)How can the parent-child relationship be evaluated if there is a prohibition of contact?

2)Is the evaluation “fair” if the parent-child relationship is assessed at a visitation center? Or at a park?

3)If convicted, will the parent serve time and how might that impact recommendations for parenting time?

Criminal DV charges

1)Must the evaluator wait until the DV case is settled? (Either through a plea or trial)

2)If convicted of DV, how does that impact the recommendations?

Other criminal charges that could lead to incarceration

1)How would jail time impact recommendations for a parenting schedule?

2)Does the evaluator make multiple sets of recommendations, based on potential sentencing?

When a criminal charge is brought during the course of the PRE

Essentially the same questions as above

How does the evaluator handle the anticipated delay in release of the report due to pending criminal matters?

Conference call with both family law attorneys
Request for TSC with Court
Important to remain neutral throughout evaluation

Why are criminal charges an issue for the evaluator and the family law attorney?

One party may not be able to discuss the charges due to 5th amendment issues

On the advice of criminal attorney
On advice of family law attorney
Does evaluator have duty or obligation to suggest that they may want to be careful about what is said?
Is evaluation inherently prejudiced by hearing only one side of the criminal issue (particularly if the charge is either DV or child abuse)?

Is 5th amendment protection waived if the criminally charged parent discusses the event with the evaluator?
One party may have a Protection Order that prevents contact with the child

Statute and ethics require that the parties’ relationship with the child be assessed as part of the evaluation

Professional guidelines (APA, AFCC)
14-10-127

One party may have limited interactions with the child, due to a protection order

May be difficult for the evaluator to get “true” understanding when a child only sees a parent in supervised setting
If parenting time is totally restricted, evaluator may push, via conference call with attorneys or TSC with Court, for at least limited contact so that relationship can be assessed

If convicted of child abuse charges

May require recommendation of continued supervised parenting time

a)What are the recommendations for resuming unsupervised parenting time and who makes the determination for that to happen?

If acquitted of charges, may lead to recommendation of return to unsupervised parenting time

If child abuse charges are related to sexual predation, may recommend very restricted contact, if any, with the child

Are there any recommendations for moving toward unsupervised parenting? Or is it up to the convicted party to motion the Court?

If convicted of DV charges, may impact recommendations for decision-making and co-parenting

Court may consider abuse in determining parenting time and decision-making
Evaluator must consider control/coercion issues in recommendations pertaining to decision-making and co-parenting
Practically speaking, how will the parties co-parent if there is a permanent protection order?

How might recommendations fit with requirements of Probation?

For example, drug/alcohol testing and montioring

Incarceration would impact recommendations for parenting time until released

Lengthy jail sentence may make it impossible to craft recommendations for parenting time, particularly with young children

May need to get resolution of criminal matter prior to completion of report

How can recommendations be made when legal determination of charges (regardless of DV or child abuse) are pending?
How can recommendations be made if there is uncertainty as to potential jail time?
How can recommendations be made if criminal court continues Protection Order?
Answers to above may depend on whether the client has chosen to waive their 5th amendment right

Representing client who has criminal charges pending

A. 5th amendment

B. Use of PRE file in criminal hearing