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The Differences Between Family and Criminal Court in a Domestic Violence Case


Domestic violence is a complex area of law. It involves family and criminal courts, although the two are separate fields from each other. Domestic violence is where family and criminal laws overlap, leading to conflicting orders and confusing litigation. A victim of domestic violence may not know which route to take or whether to hire a family law practitioner or a criminal prosecutor. Learning how domestic violence fits into both areas of law can help victims and suspects know what to expect.


A couple that never before had an issue with domestic violence may suddenly experience abusive or violent behaviors during a divorce. Divorces are naturally a volatile time in a relationship and can trigger abusive or threatening behaviors that did not previously exist or were not apparent. A spouse may become physically violent and strike, push, or sexually assault a partner out of anger or spite. A spouse may also resort to stalking, intimidating, or bullying an intimate partner to get what they want, such as certain assets or custody of children.

In some cases, one spouse may falsely allege domestic violence to obtain custody of children. The courts will not assign children to live with a parent who they deem violent or abusive. In these cases, the defendant would need to hire a criminal defense attorney instead of relying solely on a family law attorney for defense against the harmful allegation. Without a skilled attorney, the defendant risks losing custody in a divorce case.


Many couples mistakenly believe that family and criminal courts will decide that a domestic violence case using the same laws and legislation. This is far from the truth. Each court has an entirely separate process for trying domestic violence cases. The family court system is not designed to deal with the criminal implications of domestic violence in a divorce, custody, or other family court order. Trusting the family courts with a domestic violence case puts the victim at risk of being vulnerable without the proper prosecuting attorney.

The goal of family court is to allow two parties to deal with their personal differences in front of a third party who can make the final decision. Each party is more or less on his or her own, with the state holding little power. Criminal court, on the other hand, uses the immense powers of the state against the defendant. This is good for the victim and bad for the defendant. Since the criminal court sees the issue as an offense against the public, the state can carry out investigations and prosecution with or without the victim’s input.

During a family law case, there are no legal protections offered to the victim. Family law proceedings operate on the underlying assumption that a family dispute is not a criminal dispute. Thus, the courts have no remedies for criminal acts involved in family dispute cases. Accusations of abuse in family court open the floor for the alleged abuser to defend him/herself and put forth his or her own allegations. Ultimately, the abuser has the ability to turn the courts against the victim—an ability that is absent in criminal court cases.

In criminal court, the accused cannot launch counter-allegations against the victim. The defendant cannot open new charges; he or she can only defend against current allegations. A victim is therefore more protected. Victims can also request a protection order in criminal courts, which are known as restraining orders in California. The victim can request provisions such as no contact, moving out, surrendering of firearms, mandatory counseling, and paying for the costs of abuse. Understanding which facet of law will best protect you in a domestic violence incident is crucial to the success of your case. If you are involved in a dispute that involves violent behavior in San Diego, be sure to contact a domestic violence lawyer who can help you sift through the law and protect your rights.