Show Topic
This show aired on June 11, 2017. It was hosted by David Enevoldsen. Robert Gruler of R & R Law Group appeared as a guest on the show. David and Robert discussed the idea of a family law being good people at their worst and criminal law being at their best, the different burdens of proof in family court and criminal court, the use of facts established at different burdens of proof, the importance of having criminal and family attorneys communicating, and the fifth amendment implications in family and criminal court.
Guest Information
Robert works for R & R Law Group, and can be reached at 480-400-1355 or through www.rrlaw.us.
Headlines
Headlines on this show looked at the 50th anniversary of the Loving v. Virginia opinion recognizing marriage as a fundamental constitutional right and allowing interracial couples to marry, the controversy surrounding Jewish divorce and the efforts by Zvia Gordestky to spur change in Israel’s Parliament to allow divorce without the consent of a husband,
Did You Know
This show’s Did You Know looked at a Safe Haven Laws (laws that allow you to leave a baby at a safe haven provider with immunity from prosecution) around the country, the safe haven law in Arizona, and a story in Tempe regarding a woman that left a newborn baby abandoned in a Food City parking lot.
Transcript of the Show
Speaker 5: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.
Speaker 6: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children. Hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now here's your host.
David Enevoldsen: Hello everybody and welcome to Family Law Report, I'm your host David Enevoldsen here with you every Sunday at noon Independent Talk 1100 KFNX. Here on Family Law Report, we talk about all the current topics of family law, ranging from what's happening in the political arena, to just how to work through the basics, nuts and bolts of a divorce, or custody matter, or anything like that.
I am a practicing attorney, I work in the area of family law, and when I say family law, I mean specifically anything that is related to either marriage, or divorce, fights over custody of children, child support, prenups, that sort of thing.
I'm a partner at a law firm called Family Law Guys, it's here in Arizona, and we focus principally on helping divorcing parents avoid getting screwed out of time with their children. We have offices in the Phoenix area, we don't practice outside of Arizona, but if you want to call us and schedule an appointment, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
On today's show, we're going to be talking about, basically the intersection of criminal and family law. And I'm joined today by my guest Rob Gruler, from R&R Law Group. Rob thanks for joining me.
Rob Gruler: Thank you David, good to be here.
David Enevoldsen: And, we'll get into talking with Rob in just a few minutes. First we're going to do our headlines, and then we're going to do our, did you know. Headlines we usually talk about what's going on in the press right now, in terms of the family law universe. And first up, tomorrow is a family law holiday. Did you know this?
Rob Gruler: I did not know that.
David Enevoldsen: So, tomorrow is the 50th anniversary of the Loving v. Virginia decision. Do you remember that from law school?
Rob Gruler: Remind me.
David Enevoldsen: Okay, so June 12, 1967, the US Supreme Court issued an opinion in a case called Loving v. Virginia, and I remember reading this in law school. You'll probably remember it as soon as I get into it.
Rob Gruler: Sure.
David Enevoldsen: Basically, what happened was, it originated where there was a ... in Virginia there was a construction worker named Richard Loving, and he got married to a woman named Mildred. Richard was white, Mildred was black. Now at that time in Virginia, there were ... there was a statute called an anti miscegenation statute, which basically made it a felony to have an interracial marriage. So, if someone was white and married a black person, or vice versa, you were guilty of a felony. Now that felony at the time was punishable by 1-5 years in prison, obviously that's a little different now.
So in this particular case, Richard and Mildred, my understanding is that Mildred got pregnant, Richard runs off to Washington D.C., where at that time it was legal for ... in Washington D.C. to get married between a black and a white person. So, they run to Washington D.C., they get married because they can't do so in Virginia, then they run back to Virginia and then they proceed to live there. Well authorities find out and so criminal case ensues, and they end up getting sentenced to ... or they get fined, and the sentence is suspended if they agree to move out of the state of Virginia, and never come back until at least 25 years has elapsed.
So, all of this goes on, they agree to take that suspended sentence, they move out of the state of Virginia. Later on they end up syncing up with the ACLU, who challenges it, brings it back into court. They ended up taking it all the way up to the US Supreme Court, and of course the US Supreme Court ends up deciding that marriage is a fundamental constitutional right, and that having an anti miscegenation statute is unconstitutional, because it's infringing on that fundamental right.
I got a quote here from the trial court, which I found very interesting. Trial court says, "The almighty God created the races, white, black, yellow, Malay, and red. And he placed them on separate continents and but for the interference for his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."
So that ... this is one that always stuck out with me, from our ... taking it back in constitutional law in law school, cuz it's ... obviously marriage is intertwined with the whole family law universe, so I've even got a picture, that I created, in my office that's got little pictures of the Loving's, and they have kids that they ended up having and they lived out a happy life, going through that whole thing.
There's a movie that came out last year actually, called Loving, did you hear anything about[crosstalk 00:06:37]
Rob Gruler: I did hear about that, yeah.
David Enevoldsen: So the movie is all about their story. I was kind of excited when the movie came out. I ran down and saw it in the theater. It's ... and I actually liked it quite a bit, I was kind of afraid it was gonna be real in your face, or kind some agenda that was pounded into you, and it just feels very real to me, so if you haven't seen it, I encourage you to go out and check it out, I thought it was a great movie. Just kind of tells their story and everybody seems very human, and very real, and it just goes through the whole progression of their lives, and their story, and kind of what happens with the Supreme Court case and how all that went down.
So, something that had been challenged quite a bit beforehand, so Monday is the actual anniversary of that, so that marks 50 years ... cuz June 12, 1967, was the decision date from the US Supreme Court. So, since tomorrow is June 12, unless you're not hearing this live, if you're hearing this on Sunday, June 11, then tomorrow is the anniversary, if you're hearing a podcast, then sorry you missed it, most likely unless you're hearing it on Monday, but ... so happy anniversary to the Loving decision yay.
Rob Gruler: Excellent yeah.
[crosstalk 00:07:36]
Thank you for reminding me of that yeah.
David Enevoldsen: Absolutely.
So in other news, there was an issue related to Israeli divorces, that now some of the stuff that was happening recently under ... just as way of a background, under Jewish laws, I understand it, in order to get a divorce, both husband and wife have to agree to get the divorce. That is, you can't just go in and get a unilateral divorce on your own, which you can do in the United States pretty much everywhere partic ... and in Arizona that's certainly the case.
We have a system called, no fault divorce, where you don't have to prove anything, you don't have to get consent from the other party. You can just go and say I don't like this other person that I'm married to anymore, I want a divorce. Now that, in and of itself, is controversial, and we'll circle back to that in a second. But in, as I understand it, in as in Israeli ... under Jewish law, if you're getting a divorce there, you have to get consent from both parties, in order to get the divorce.
Well there's a woman named, and I'm gonna mispronounce this, it's Via Gordetski, she's a 53 year old Israeli, Jewish woman, and she's married, and about 17 years ago, her husband was ordered by a Rabbinical Court to divorce her husband ... or excuse me ... he was ordered to divorce Gordetski. So, he said no, he just completely flat out refused to do so, and so by order of the court, I guess holding him in contempt, he's been in jail since the year 2000. So seven ... the past 17 years he's been sitting in jail, because he's refused to grant a divorce.
Rob Gruler: Wow.
David Enevoldsen: So, meanwhile Gordetski's out on the outside saying, I want this divorce, I don't want to be married to this guy who's just sitting there in jail all this time. So, she has been pushing, in various ways, and wanted Israel's Parliament to change the legislation and so they were recently looking at being able to actually do that. So there's a bill that was proposed to the Parliament in Israel, and the ... the whole was based on the idea that, as I understand it again, the ... at the time of marriage, a Jewish marriage agreement requires some sort of financial payment, and so in order to effectuate the actual marriage.
So the bill would basically make it so the state could take back the payment, and then void the marital contract, in essence make it so it never existed, or kinda of annul it, that sort of thing. So, this bill was going on, it was being debated in Parliament, apparently there wasn't a good ... nobody was thinking it was very likely to pass, Gordetski was out sticking on the out ... or kind of promoting whatever standing on the outside of Parliament. She went on a hunger strike, I guess for eight days, kind of her testament to this hope that the bill would pass. And, beforehand she was quoted as saying, "I need a solution, I've waited for 17 years, and that's long enough."
Well the bill was ultimately shot down. So, she is now again left without recourse. She is still married, her husband is still in jail, after the decision came out she said, "Today they told me at the Rabbinate that there is no solution, that in Jewish law there is no solution."
So, obviously she's very disappointed with this whole thing. One of the things that this reminds me, is that divorce in the US is often very different than it is in other countries. In the headlines here section of the show, I think we've talked quite a bit about all of the stuff that happens in some of the other countries, some of the controversies that are going on. Talked recently about the issue of triple tulock that sort of thing. In the US, like I said before, you don't have to have a fault base system, you don't even have to get locked in you know if you're in an abusive situation you can leave the marriage, if you just don't like the other person you can leave the marriage, there's nothing really sticking you there, in the way that there is in other places.
I was just yesterday ... I was looking at some articles about some controversy is Pakistan, where they, as I understand it, will treat Christian divorces differently from Muslim divorces. And so, there were conditions where, some women I guess, and I don't know a whole lot of details about this. But apparently if you are being abused as a Christian woman in Pakistan it's very difficult to get a divorce without doing something like converting to Islam, or something like that. So, I guess from my perspective, this is just a reminder to me of just how very different divorce is in the US than it is in many other places. In fact that we fixate a lot on this if you just don't want to be in the marriage anymore, you can just get out of it.
So, we're gonna go to a break in just a second, before we do that, Rob if someone wants to get ahold of you or your firm how would they do so?
Rob Gruler: Very, very easy. So we have a very short website that we share when we do radio spots, the website is www.rrlaw.us, so rr law dot us is the website that's going to take you to our homepage. The phone number is 480-400-1355.
David Enevoldsen: Okay, awesome. So that's what we're gonna do for headlines today. When we come back, we're gonna jump to a quick break here, I'm attorney David Enevoldsen, I'm joined by my guest Rob Gruler, when we come back we're gonna talk about the intersection of criminal and family law, right after we do our, did you know.
If you want to call in at any point, ask any questions you can do so by calling 602-277-KFNX, you are tuned into, Family Law Report, on Independent Talk 1100 KFNX.
Speaker 6: Family Law Report, is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married, or going through a divorce or custody fight.
Tune in every Sunday to Family Law Report at noon, here on KFNX.
If you want to know more, or to schedule and appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that's 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report. I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon, with Independent Talk 1100 KFNX.
Joined today by my guest Robert Gruler, who works for R&R Law Group. Thanks.
Rob Gruler: Hey David, good to be here again.
David Enevoldsen: If you want to reach out to my firm, schedule an appointment, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you are listening and you wanna call in ask any questions, share thoughts, tell me how amazing I am, or tell Rob how amazing he is, you can do so by calling 602-277-KFNX. And Rob one more time if someone wants to get ahold of you, how do they do so?
Rob Gruler: They can visit us on the web at RRLaw.us R R L A W dot U S. Or call 480-400-1355.
David Enevoldsen: Alright and we're gonna be talking today about the intersection of criminal and family law. Right after we do our did you know?
On did you know? This is the part of the show where we talk about some sort of family law trivia, it's often something vestigial from the past, sometimes it's something about statistics, sometimes we do quizzes.
Today we're going to be talking about something that was inspired by a story that happened this week in Tempe. And what happened was earlier this week, there was a Food City parking lot ... somebody was walking through the Food City parking lot out in the middle of the day, a passerby finds a backpack in a shopping cart, and inside the backpack there's a blanket and wrapped up inside the blanket there was a newborn infant baby girl. Now keep in mind that this is out in the middle of the day, it's like 103-104 degrees out that day, and of course the police are now kind of hunting for whoever it is that left this baby there, presumably the mother.
And it seems like this is a pretty common scenario where you have a mother who has an infant baby, panics because she's in some situation where she just can't care for the baby, or sometimes its teen mothers, I think that freak out because they just can't deal with facing the other parent or their parents or whatever. She leaves the baby here, and now she's subject to criminal prosecution of course because she just left a baby out in the middle of nowhere.
Rob Gruler: Right.
David Enevoldsen: Well the ironic thing about this particular story is, where she left the baby was super close to a fire station, but wasn't actually at the fire station. So, the reason that's significant is, and this the part of the "did you know?" thing, is that every, I believe every state in the country has, what are called safe haven laws. And sometimes they're known as Baby Moses laws.
Basic idea is that, if you have a newborn infant, and you for whatever reason, decide you're not gonna keep that infant you can drop off the infant at a so-called safe haven provider. And there's not retribution for that, there's no prosecution, no questions asked, and some cases you can just drop the infant off in a box, that's at these locations.
Now there's ... in Arizona we have statute 13-36-23. Part of the reason I like this particular thing for this segment I feel like this is an intersection of criminal and family law.
Rob Gruler: Right.
David Enevoldsen: Because on your side of this, obviously, you'd be dealing with some of these potential criminal actions if someone did abandon the newborn. But 13-36-23 is the statute in Arizona that deals with prosecuting somebody who has just abandoned a newborn infant. And, that's obviously ... it's very problematic if you're facing one of those charges.
But there's an exception there that says, that if you go to a quote "Safe Haven provider" then you're going to be immune from prosecution, under certain conditions. Now safe haven provider, under the statute is identified as a couple of different things.
It can be an on duty fire fighter, another it can be an emergency medical technician that is on duty, another is it can be a hospital or any of the following three things that have identified themselves as being willing to accept a newborn under these circumstances. One is a private child welfare agency, another is an adoption agency, or the third one is a church.
So, basically if you just had a newborn infant, and this is the other part of the statute that it defines, in Arizona at least. Keep in mind that right now I'm talking specifically about Arizona statute, although again, every state as I'm aware has a safe haven statute of some sort, basically saying you can do this. Although you're gonna have to look at each particular state in terms of what the specifics are.
But in Arizona we define a newborn as a child that is of 72 hours old or younger. So as long as you're dropping off your newborn at 72 hours or less from its birth, at one of these safe haven providers, one of these things that's identified as a safe haven provider, then you can't be prosecuted for it.
Which is why this story was so ironic, because this ... whoever it was that dropped off this baby in the Food City parking lot in Tempe, could have just dropped of the baby at the fire station, which was super close to this location and then been completely immune from prosecution. Now instead she's got police chasing her down ... I'm assuming it's the mother, that dropped off the baby.
Now one of the interesting ... so that's the did you know component of this, is just did you know there were these safe haven laws. Now one of the interesting things about these is that there's quite a bit of controversy around the safe haven laws, and it seems to fall in a couple of different camps.
On the one hand, the whole reason for the statues in the first place is that there's been all this concern that very frequently, particularly I think young mothers, will have babies covertly drop them off in alleys or trash cans, or Food City parking lots, wherever, and the babies would very frequently die. And so they're trying to stop that, put some sort of chill on that effect, by saying look, rather than just dump your baby off in the middle of nowhere until it dies, we would rather that you take the baby to somewhere where somebody's going to care for it, we're going to create this incentive by saying your immune from prosecution by doing that.
The counterpoint to this, because on the one hand you're trying to save these baby's lives but on the other hand there's a few different objections. One is, that you're creating some sort of gender inequity, in family law we very often see, the mother will have a child and then father could be opposed to that. For example, if we're looking at abortions for example, father doesn't really have any control over whether or not the abortion is going to happen, mother kind of holds all of the control in that. If ... here also the objection is that if the mother just suddenly decides she just wants to check out she has an automatic out in this situation. She can just say, okay within 72 hours I can say I'm out, and then she's completely out. Whereas the husband or father or whatever never has that choice to say, I'm ... I just want out, he's just stuck, and then immediately she's gonna be chasing him, if he doesn't want to be involved, as being some sort of dead beat, or he's just worthless, monster. So that's one objection on the whole thing.
Another is that just the distinction that's being made, that a mother could be ... is able to drop off a child in one place, but not another, and can just dump a kid wherever and just the simple location that she's dropping it off it gonna somehow change whether or not she's being criminally prosecuted.
And I dunno, maybe that's just the technicality that you show up with in criminal law, and tell me your feedback on this, in general just that there's this almost arbitrary rules sometimes that say we can ... the state can prosecute you in some situations but not others.
Rob Gruler: Right, and you have to be ... it's a very difficult issue that we have to deal with on a daily basis. Like you said, there are competing interests, addressing the problem from both sides, from both angles, and somebody has to draw a line somewhere. So there's generally a compromise, where you know like in this case, somebody says okay can't be everywhere but we will allow safe havens at this particular locations. And so our Congress people, for whatever reason, came up with that statute, passed it, and it's now in effect.
My firm, the R&R Law Group, I have not personally seen a case like that come in where a mother or a father was prosecuted for, like you said, dropping off a child at an unauthorized location. We do see child abuse, child neglect, child endangerment, so those types of offenses, but the did you know segment was good because I did not know that there were those safe havens, and that is a very interesting sort of dichotomy that we have to deal with in the law, where you've got those competing interests, yeah.
David Enevoldsen: Well, and ... and I'm not taking a position ... just to be clear I'm not taking a position one way or the other on this, I'm just saying there is this sort of controversy surrounding it, and it seems like there very often is around anything that is criminalized. You know I've heard people get outraged at just the idea that a speeding statute could be ... and we have things like criminal speed, right?
Rob Gruler: Sure.
David Enevoldsen: If you go what is it 20 miles over the speed limit?
Rob Gruler: Yeah, 20 miles
[crosstalk 00:24:36]
David Enevoldsen: Or over 85 is that right?
Rob Gruler: Right, so if you're going 86 in a 75, this gets a lot of people on our interstates, you know if someone is going to visit the Grand Canyon and they're going 86 and the speed limit is 75 they think well I'm just going 10-11 over, they don't realize, that's a criminal offense, that's a misdemeanor in Arizona and so other states don't have and people get that violation and they're shocked when they come to our office, and they're blown away that they could be charged with a criminal offense, just for speeding tickets.
David Enevoldsen: So, here I guess my point of this is just like the safe haven laws, there could be a lot of controversy around that, in that, some people could say what the heck, it doesn't make any sense to be criminalized going at these speeds, and other people are saying well we're trying to protect the public and you're going at these speeds you could kill people, and that sort of thing.
I guess that's the same basic controversy around any criminal setting.
Anyway that's our did you know for today.
So lets ... we've got a couple minutes before break, so lets at least get an introduction to you, lets ... can you just tell me a little bit about what you do, and your business, and kinda where you come from and that sort of thing?
Rob Gruler: Definitely, yeah, so again my name is Robert, I'm with the R&R Law Group, we are a law firm located in Scottsdale, we have an office in Avondale as well. We do criminal defense law. We do a lot of traffic defense, DUIs, domestic violence, assault, disorderly conduct, basically anytime that you're charged with a crime, anytime you've been cited by a police officer, you call our office and we're gonna help get you through that situation.
David Enevoldsen: Awesome, and so how long have you been practicing?
Rob Gruler: So, I've been practicing about 4 years our law firm is fairly new we're about 2 1/2 years old. Myself and my partner worked at other law firms only practicing in criminal defense, around Arizona. Working for those firms we decided that we didn't like the way they were approaching the field of law, and so we decided to break away from them and start our own practice. And it's been going very well ever since.
David Enevoldsen: Awesome, alright we're gonna take another quick break. I am attorney David Enevoldsen, joined by my guest Robert Gruler.
When we return we're going to be talking more about the intersection of criminal and family law.
If you wanna call in and ask any questions you can do so by calling 602-277-KFNX.
You are tuned into Family Law Report, on Independent Talk 1100 KFNX.
Speaker 6: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married, or going through a divorce or custody fight.
Tune in every Sunday to Family Law Report at noon, here on KFNX.
If you want to know more, or to schedule and appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that's 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report, I'm your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm. Here with you every Sunday at noon, on Independent Talk 1100 KFNX.
I'm joined today by my guest today, Robert Gruler, who works for R&R Law Group, and if you want to reach out and schedule an appointment with my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you are listening and you wanna call in ask any questions, or share thoughts, you can do so by calling 602-277-KFNX. And Rob one more time if someone wants to reach out to your firm, how do they do so?
Rob Gruler: Thank you David. The website is www.RRLaw.us and the phone number is 480-400-1355.
David Enevoldsen: Alright thank you. Now today's topic is all about the intersection of criminal and family law. And Rob is a criminal attorney as we've discussed. And I thought kind of a good starting point for that, you talked about, kind of what you do, and your practice there, is I had an old adage, that I'd heard quite a few times, and I just wanted to share it because it reflects the intersection of family and criminal in my mind, and I have my own thoughts on this.
But the phrase is criminal law is bad people at their best, and family law is good people at their worst. Have you heard this before?
Rob Gruler: Absolutely, yeah. We've talked about it, this is a long running joke, and this is part of the reason why my firm does not practice in family law, is because you know we've dabbled at that family law in my old prior firms, and the type of clientele, the type of personality that you're dealing with, I think, is very different between the two fields. And I think that adage is true in a lot of ways.
David Enevoldsen: Now I guess one of the thoughts that I had about this, is that some of my exposure to criminal law, with this phrase bad people at their best. I know a lot of times I felt like, when you're dealing with criminal law very often it's good people that kind of made a mistake, or got in the wrong situation, or were just hanging around the wrong people or something. And so I sort of take issue with the bad people component of that, and correct me if you disagree, because obviously this is your area not mine.
But I just felt like more often my exposure to criminal law was decent people that made a bad decision or did something stupid, they got sucked into something that turned into a criminal case, as opposed to bad people. And there were a few bad people, but I saw, for example in law school I did an externship with a criminal judge in the superior court, and that was my feeling most of the time when I was seeing these criminal law defendants and every once in a while I'd see someone where I thought oh my God this person is evil and needs to be exterminated or something, but most of the time I was like, oh these are average people, that just got into something.
Do you disagree, do you agree?
Rob Gruler: No, I completely agree. I mean the vast majority of our clientele, the people who need our help, they're in a bad position, they may have done something to contribute to that position, they drank too much, they got in a heated argument that lead to a domestic dispute, they were out in a bad situation or under bad circumstances. But that does not mean that, that one event defines who they are as a person. The vast majority of our clients ... their entire lives have been law abiding, they've been good people, they've got good jobs, they've got careers, they've got families, they've got wives and girlfriends. You know they are very good people, they're just kind of caught up in a bad situation.
I think where a lot of the truth comes into that adage that you just shared with us, is that when people do come to us, they are suddenly on their best behavior, they recognize that something screwed up, and they're regretful for that and so now they're on red alert, they want to make sure they are putting their best foot forward.
David Enevoldsen: And that makes sense to me, yeah, I totally get that. And I do think very often family law is good people at their worst, because it's just like you said, it turns into such craziness in the family law universe and you see people that are otherwise fine upstanding citizens that just go haywire, absolutely crazy, and they ... and I've personally been there, you know I've had situations where I was embroiled in my own personal matters, where I kinda stopped and went oh my gosh, I'm doing things clients tell me not to do. When you get in that personal universe, people unravel.
Rob Gruler: And I can definitely see that. A lot of our clients, when they recognize what has happened. If they had too much to drink and they got a DUI, or they broke something while they were out at a bar, or they got a drug issue, something along those lines. They understand that there will be consequences for that and there's a little bit ... I wanna say they're somewhat at peace knowing that there will be consequences and our job is to help get them through that, with as little damage to their lives, their careers, their family relationships as possible. So there's an understanding there, that they know sort of what's coming. Where in a family law case, it's again, this is not my field so correct me if I'm wrong, but
David Enevoldsen: I'm pretty sure you're right
Rob Gruler: It can be a sudden break down, where suddenly somebody's children are being stripped away from them, their property, their home, their assets are being taking from them, and so I can see how that would just lead to, like you said, sort of a breakdown, sort of a chaotic response to that. And so when they come to you for your help, there's a big sense of uncertainty and they're turning to you to help them get them through that.
David Enevoldsen: Sure.
Well lets maybe shift gears a little bit and turn to a little more technical stuff, and we're talking to some generalities. I just thought that would be a good opener because I've heard that phrase a million times, and I just thought this is the opportunity where I have the interject the criminal with the family.
One of the things that seems very important to me in the family law universe, when I'm interacting with criminal cases, is the issue of burden of proof in the respective cases. So could you maybe say just a little bit about what the burden of proof is in a criminal case, and maybe we can talk a little bit about how those two interplay when you've got a criminal vs. family case going.
Rob Gruler: Definitely, so in order to be convicted of a crime, a person who is charged, they have to accept a plea of guilty to that offense. So meaning they go in a meet with a prosecutor or we do this on their behalf and they accept a deal to a charge, now generally it should be a lesser charge.
If they want to contest the case and take the case to trial, the burden of proof is what is called, beyond a reasonable doubt, so you see this on T.V. shows Law and Order, and the movies. A jury has to be convinced that you are guilty beyond a reasonable doubt. And generally we don't like to use percentages or anything like that, but it's the highest standard of proof, and it's basically like 80% likely or more that, that person is responsible for that act, then they can find the guilty of that offense. So it's a tool that we as defense attorneys use to really make the state have concrete, solid evidence in order to meet that burden.
Where in the civil matters, my understanding, is the burden is significantly less.
David Enevoldsen: Yes, and in generally speaking, in family law cases you're looking at what's most of the time it's a preponderance of the evidence standard, which essentially means ... again it's really difficult to quantify it, because most of the standards don't actually use percentages. But in terms of just thinking of it that way, a lot of people think of it as the scale where you're tipping it one way or the other, and the basic idea is that it's more likely than not that whatever is being said it what happened.
So it's typical, like if you have 51% probability that this thing happened, so it's significantly lower. The reason that I find this so important, within the interchange between the family and criminal, is that if you have a pending criminal action that somehow influences what's going on in the family court action then there can very often be demonstrated at a very higher level of proof. That is to say that if you got a fact that is relevant in both situations ... so you've got a criminal case and say there's a domestic violence allegation so you've got some charge in the criminal case that somebody's engaged in domestic violence against their other parent.
Now if that happens and the criminal court has a finding at this beyond a reasonable doubt standard, which is significantly higher than the standard that's in the family court case. When you walk into the family court case, now all of a sudden we've got something that's been established at a higher burden of proof, as a fact. And so now you can't come back and say, well that didn't happen, because it's already been proven at a higher level of proof.
Now that doesn't work the other way around, that is to say if there is a finding in a family court case that doesn't roll over to the criminal case. But to me that makes it extra important that, particularly if you've got attorneys both the family court case and a criminal court case they probably should be talking to each other about what's going on to make sure there's not something that is going to significantly impact the family case. That is going on in the criminal case ... and my personal experience is, its kind of difficult sometimes to get the two attorneys talking, I don't know why. Or maybe they just don't think to reach out to each other, I don't know what the ... do you have any insight into that or?
Rob Gruler: Sure, yeah I mean it is often difficult, attorneys are busy people, it's difficult to get them on the phone and what not. Generally when we handle a case that is going to have some overlap with family law issue, our matter comes before the family law issue, so the criminal process, as far as I can tell, is a little bit more fast moving than the family court maybe.
David Enevoldsen: I think that's generally true.
Rob Gruler: Yeah, and so our highest priority is to beat that criminal charge, so that our client will ... doesn't, not then have to carry a conviction over to the family law matter. So our number one priority is to deal with that from top to bottom, and then generally we will slide that over to the family law attorney and say okay we've done our part, now it's up to you to do what you need to do measured against that lower burden, that you just discussed.
David Enevoldsen: Well and I think this is, I guess my point in this would be if you are a defendant/client in a family matter you probably want to encourage the attorneys to at least communicate with each other. Because I feel like most of the time that's probably how I'd want it to be dealt with, in terms of what's going on, from my perspective as a family law attorney. I would want the criminal case to be resolved in some fashion, ideally, without a specific charge on it. But at the same time, every once in a while, there's things that I want to make sure I'm having some input on, or I want to say no, no, no, this actually shouldn't be happening, or we need to stall over in this other case, or whatever is it. So, I guess, my theme if the ... the attorneys should be talking at least on some level of communication if they aren't, probably as a client you wanna be pushing them to have some level of communication.
So ... and there's so much that could interplay there, and I've seen situations where, in the maybe we can jump into the 5th amendment stuff here in just a minute, because that impacts what is going on as well.
But we'll do that right after this break. We're gonna take another quick break, I'm attorney David Enevoldsen, joined today by my guest Robert Gruler, and when we return we're going to be talking more about the intersection of criminal and family law.
If you want to call in and ask any questions you can do so by calling 602-277-KFNX. You are tuned into Family Law Report, on Independent Talk 1100 KFNX.
Speaker 6: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married, or going through a divorce or custody fight.
Tune in every Sunday to Family Law Report at noon, here on KFNX.
If you want to know more, or to schedule and appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that's 480-565-8680.
David Enevoldsen: Welcome back to Family Law Report, I'm your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm. Here with you every Sunday at noon, on Independent Talk 1100 KFNX.
I'm joined today by my guest today, Robert Gruler, who works for R&R Law Group, and if you want to reach out and schedule an appointment with my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you are listening and you wanna call in ask any questions, or share thoughts, you can do so by calling 602-277-KFNX. And Rob one more time if someone wants to get you, how do they do so?
Rob Gruler: Thank you David, website is Rrlaw.us that's R R L A W dot U S, and the phone number is 480-400-1355.
David Enevoldsen: Awesome, now we've been talking today about the intersection criminal and family law, and right before we went to break we were talking at little bit about kind of the different burdens of proof, and how in a criminal case you can kind of establish a fact that can be rolled over to the family court universe. And just before we shift from that, we started talking about 5th amendment, one of the thoughts that occurs to me, is I've actually seen people use that in reverse as a tactic. That is to say, they'll try to get, say you're the victim of domestic violence, they will try to get the domestic violence criminal case to proceed, not do anything in the family court universe, until that's resolved so they've got this established fact, that there is domestic violence.
Now, domestic violence, is one of a few things that can impact the family law universe, because statutorily if you have a demonstration of significant domestic violence, which a criminal conviction goes a long way in proving, then you presumptively don't get legal decision making rights over child. In some situations you don't even get anything more than, unsupervised parenting time. So that can have a huge impact on what's going on in your family court case.
In other situations I've seen where ... sometimes that doesn't even necessarily matter if taking into account sort of 5th amendment issues so let's jump into that as kind of an explanation first.
I think most people know what this is just from having watched cop shows, or lawyer shows or whatever. But can you just briefly explain what is the 5th amendment implications in a criminal case?
Rob Gruler: Sure, so as you mentioned, people do see this all the time, on the cops shows and Law and Order and stuff, it's essentially the right to remain silent. People read you the ... your Miranda Rights, you have the right to remain silent, you have the right to an attorney, you have the right to refuse any questioning, and all those types of issues that you hear about.
It's very important in a criminal case, because a lot of time the prosecutors or the judges, the jurors, people will hear something that ... somebody who has been alleged to have committed a crime, they'll hear something that he or she said, and then as the law says, anything that you say, can and will be used against you, and they latch on to that and they can use your own statements against you, as the criminal case proceeds. So that's why that Miranda Right is very important, it's critical that, that's read, and that our clients abide by that. It's something that virtually every defense attorney will counsel, is to be quiet, if the police are asking you questions
David Enevoldsen: I'm assuming that is generally your advice, is the shut up.
Rob Gruler: Always, always. Keep your mouth shut. People think that they can talk their way out of a situation, let me just reason with this officer, let me just explain my situation, and suddenly everything will be better. It doesn't, it just doesn't work like that. We've seen police reports that have really twisted up people's words, and to be honest with you, I've handled thousands of cases and I don't think that I've ever seen anybody ever able to talk themselves out of it. Their own words will just dig them in a deeper hole.
David Enevoldsen: Yeah, well and one of the things that comes into play from my perspective, in the family court case, is that if there is an allegation. Let's say for example that, there's two parties in a custody fight, and there's an allegation that one of the parties as been sexually abusing a child or something, I've actually worked on cases like this where this has happened. And the simultaneously there's a criminal case that pops up, alleging that one of the parties has sexually molested a child. Now they're dealing with this on the criminal front. Now in the family court, very often, the other parent will jump in and try to get some emergency temporary orders, or something, taking away any parenting time from the child because they want to keep the kid safe from the other parent, who's allegedly sexually abusing the child.
Now, what I usually get on the family front, is the client saying we need to go in and like fight this, we need to tell the family court that this is not what happened, I'm gonna tell you all the factual stuff and my automatic reaction is generally speaking, no, you're gonna ... we're gonna walk into the court room and you're gonna shut up.
Rob Gruler: Right.
David Enevoldsen: And you're just gonna take supervised parenting time right now, you're gonna assert your 5th amendment rights, and I'm gonna say everything. Because my biggest fear, is that you're gonna say something, on the record, in open court, that is now gonna be able to be used over in the criminal side, because you've put some statement out there that maybe is inconsistent, or is putting something out there that the prosecutor can cling on to, and you've nuked yourself on the criminal side. And if you've nuked yourself on the criminal side and you're in prison, it really doesn't matter whether you have family
Whether the family court has ordered to do parenting time, because you're not gonna be exercising your parenting time from prison, right.
Does that sound like a reasonable recommendation, generally speaking?
Rob Gruler: Definitely yeah, and as you mentioned in the last segment, that's why it's so important that attorneys are communicating with one another, so that they're not sabotaging each other's case. You want to make sure one hand is talking to the other. You know it's the same issue in a criminal case, generally we don't have our clients testify at a trial unless we think that there's gonna be a strategic advantage. And ...
David Enevoldsen: Why is that?
Rob Gruler: Well, because, just like you had mentioned, some ... they could say something, the prosecutor could beat them up on a cross examination, trials can be a little bit unpredictable, that's why there's always a risk at going to trial.
David Enevoldsen: I think, and correct me if I'm wrong, but you also, in a criminal case, open the door, if you put the client on the stand, to all sorts of cross examination from past things, other felony convictions
Rob Gruler: Right, there's a whole rule ... rules of evidence, that are both in statute of federally and in Arizona that can lead to pretty severe consequences, if one of our clients were to mistakenly open the door, or say something that a good prosecutor could latch on to. Now anything that he was not intending to talk about, could potentially be fair game, and that could carry, not only sever consequences in a criminal case, but it could also transfer back over to the family law issue.
David Enevoldsen: So I guess that moral of the story here is, generally speaking, number one if you have two different actions going on a criminal and family, make sure your attorneys are talking, number two don't say things to the police, just don't say things on the record, if you're going on in your family court case, and sometimes the problem with that, on the family side, is you may at least on a short term basis, may be dealing with some sort of severely restricted parenting time.
Using that example I was giving before, you might be stuck in a place, where on the short run you have to deal with only supervised parenting time. Because if you're not saying anything, and the other side is saying, oh this person sexually abused my kids or whatever the allegation is, the only factual piece of information that the court has to work on, is the other party making the allegation that you sexually abused the kid. So the court has to assume the kids are in a dangerous situation and your parenting time should be restricted. But again from my perspective, on a short term basis, that's a much better angle than running the risk that all of a sudden you're in prison and you're not gonna have parenting time anyway, because you said something stupid on the record, that's gonna sabotage you.
So maybe I can run through, we're getting near the end of the hour here, but maybe I can run through just a couple things that to me seem like obvious interactions points.
And one obviously is if you got kids, and you've been accused of sexual molestation of the children, that's gonna have criminal implications and family court implications. One that may be less obvious is if somebody is using drugs or alcohol. Obviously there can be implications on the criminal side in terms of people getting DUIs or people using illegal drugs, if someone has a conviction for illegal drugs most of the time, that's going to severely sabotage what's going on in the custody fight as well, because you're presumptively under the statute not fit to parent, if you're strung out on meth or something.
Alcohol is a little tougher, with the DUI universe, sometimes I find that, that impacts things, and sometimes it doesn't if you've got a DUI conviction, just because you may ... that may or may not say something about the implication of parenting time at least, but it again, if you've got a demonstrative problem, it can impact your legal decision making powers.
So, all of this stuff can really come into play in the family court universe, which again further underscores, in my mind, the need to have your attorneys talking together and also trying everything you can to avoid any sort of criminal conviction in the first place. I, as an aside, I've actually got an introductory letter that we hand out to new clients, with a ... that says ... and we've got one specific paragraph in there that says, just watch yourself very carefully, don't go get convictions, don't go get DUIs, don't put yourself in a position where you could possibly be getting a DUI, or anything like that, just because this can blow up in your face later when you're doing custody fights.
Domestic violence is another one, I assume you run into a lot of these.
Rob Gruler: Yeah, we have a lot of domestic violence cases. Generally speaking, I think that, sort of the evidence that you'd see in a criminal case is a lot more tangible, than a lot of the evidence that you may see in a family law case where it could be a lot more he said-she said stuff. A domestic violence allegation in a criminal case we generally see injuries, we have witnesses, we have broken items that were thrown in the household, or scars, bruising, those types of things. So, there's something that we can ... the state or the victim can point to, that we have to defend against, whereas in a family law case like you said, it could be a simple as a he said-she said type of allegation, and so there's a lot less for you guys physically to get your hands on versus a criminal case.
David Enevoldsen: Absolutely, yeah. So there's lots to be concerned about, I feel like we just barely scratched the surface of the criminal and family universes. The moral of the story here is make sure your attorneys are talking, don't say things to the police, don't put things on the record if you've got a criminal ... a pending criminal case. I think that's a good moral to walk away with.
That's about all the time we have for today's show, you have been listening to Family Law Report, I'm your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, and I've had with me my guest Robert Gruler, from R&R Law Group, one more quick ... one more quick time give you a plug.
Rob Gruler: Perfect phone number is 480-400-1355, visit us on the web at RRLaw.us.
David Enevoldsen: Alright join us again next week on Sunday at noon for more on the latest of family law, here on Independent Talk 1100 KFNX. And thank you all for listening.
Speaker 6: Hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married, or going through a divorce or custody fight.
Tune in every Sunday to Family Law Report at noon, here on KFNX.
If you want to know more, or to schedule and appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680, that's 480-565-8680.