A multitude of domestic cases are heard each year in family court, and in order to achieve the best outcome, it is important for all participants to be thoroughly prepared for the process.

Family law (also known as matrimonial law) encompasses a broad range of family and domestic matters such as marriage, civil unions and domestic partnerships, as well as the many issues that arise out of divorce or the termination of such relationships, such as alimony. Family law also covers issues surrounding children including adoption and surrogacy, child custody and child support, as well as support for an unemancipated child. Matters of child abuse and child abduction may also come under the jurisdiction of the family court, although in some states, the abduction of a child across state lines is a crime.

Differences between Family Court and Criminal Court

In family court, the parties are usually just the two estranged partners who appear as the plaintiff and defendant before a judge. In criminal court, the parties are usually the defendant who is charged with a crime and the District Attorney (prosecuting on behalf of the state) that appear before a judge and jury. In most cases, the criminal court defendant has the right to a jury trial, and the verdict must usually be unanimous. It is the prosecutor, not the victim, who decides what charges to bring against the defendant.

A family court will not determine whether a person is guilty of a crime. If the case concerns divorce, a family court may simply approve the terms of the divorce as agreed privately between the spouses. If the parties cannot agree on issues, a family court will decide the terms and may give consideration to prenuptial or postnuptial agreements.

A criminal court will decide whether the defendant has committed a crime. The criminal court may order the defendant to follow certain conditions, such as having no contact with their partner or children, but it will not decide what child custody and access plans would be in the best interests of the child after the relationship ends. This is the remit of the family court. In reaching a decision, the family court will consider the behavior of the parties to determine their ability to be a good parent to a child. This includes whether a parent has threatened or abused the child, their partner, a parent of the child, or anyone living in the home.

In criminal court, the defendant must be proven guilty beyond a reasonable doubt. The prosecutor must provide solid evidence to demonstrate that there is no reasonable explanation for the criminal act, other than that the defendant committed the act. If the jury is unconvinced by the prosecutor’s case, the accused will be found not guilty. In family court, the standard of proof is lower than in criminal court, and is based on a balance of probabilities. This means that the judge has to decide that it is more likely than not that one party’s allegations are true. It is basically a question of which party’s story sounds more convincing.

The different standards of proof can produce different conclusions in each court. The accused partner may be found not guilty of assault in criminal court, as the evidence did not prove guilt beyond a reasonable doubt. However, in family court, the judge might grant the plaintiff a restraining order on the basis that the plaintiff’s version of the disputed assault sounds more credible than the defendant’s story.

In criminal court, if the abusive partner is found guilty, they might go to prison or jail, get a criminal record, and pay a fine. In family court, whatever the outcome of the hearing, usually no one goes to jail and neither party gets a criminal record. If a family court order is ignored, however, the judge may find the non-compliant individual to be in contempt of court, and punish the person by ordering them to pay a fine, sending them to jail, or both.

Family court and criminal court orders may state different things that turn out to be contradictory. If bail conditions from the criminal court conflict with access or restraining orders from the family court, the aggrieved party may need to return to either court to seek a change of court order.

The Risks of Taking Your Case to Family Court

As it is the state that takes a case to criminal court, it is for the District Attorney to decide whether or not to charge your partner with any crime. When it comes to family court, however, the decision of whether to place your dispute into another person’s hands rests firmly with you. If you do choose to take your case to family court, you should be aware that there are inherent risks associated with the process—the main one being that your decision-making powers are surrendered to a judge.

In family court, the opposing parties are presumed to be equally capable individuals who are involved in a private family dispute, not a criminal dispute. Whatever the issue at hand—be it divorce, child custody, child support or adoption—the estranged individuals are responsible for investigating, preparing and defending their case in family court, with or without the assistance of a family law attorney. The family court system is ill-designed to protect against the criminal dynamics that dominate family disputes, for example abuse and violence.

In family court, a plaintiff may well successfully prepare and conduct their own case and then successfully defend against their abuser's counter accusations, yet even if the judge decides for the victim, the family court has little power to control a violent perpetrator. Family courts can write restraining orders or visitation orders, but family courts rely on the criminal law system to handle breaches of those orders. A family court has no power to place the abusive party in jail.

Although the family law system provides only minimal protections for victims of family violence, the family court has the power to take disastrous actions against said victims. This can happen when the family court wrongly awards child custody to the abusive parent, who then goes on to injure or kill the child. In other instances, victims go to family court in an attempt to remove the abuser from their lives, and are rewarded with family court orders that bind the victim to the abuser in ways that are oppressive or dangerous to the victim and/or children.

Depending on the nature of the family dispute, you may find it more appropriate to avoid the risks of family court by choosing other means of dispute resolution.

Mediation versus Court

Some parties are able to settle divorce and ancillary issues through mediation. It is prudent for the spouses to avoid adversarial litigation where possible, and try to negotiate mutually acceptable divorce terms.

In mediation, the trained family mediator is an impartial person who facilitates negotiations between the parties, offers information, and summarizes in writing any agreements reached by both parties. Mediation services are offered to married and unmarried partners, and to parties who are separating or divorcing. Mediation is likely to be far less expensive than civil litigation, and is usually a more amicable, non-combative way to resolve issues. The degree of conflict between the parents can adversely affect the well-being of children, and mediation can help the parties decrease the conflict and work cooperatively for the benefit of the children.

Although mediation is essentially a voluntary process, some courts in certain states will order mediation. Court-ordered mediation involving alleged issues such as child abuse and accusations of domestic violence can be problematic where such mediation goes against the victim’s wishes. In some cases, the victim is afraid of the perpetrator or worried about the effect on the children, and does not see mediation as a useful strategy.

Matrimonial dispute resolution can also be achieved through a voluntary legal process involving collaborative law. The collaborative divorce process allows the parties to work in a more amicable fashion toward bringing about a just divorce settlement for both the parents and children.

Preparing for Family Court: What to Do, What Not to Do

Whether you are the plaintiff or the defendant in family court, your evidence must be as complete as possible in order to convince a judge that you deserve to win your case on the balance of probabilities. Evidence is everything. Do not assume that you are guaranteed to win your case just because you intend to tell the truth. Merely stating that “everybody says [your partner] is a bad person” does not constitute evidence.

The relevant evidence can be presented in two main forms:

  • Testimony – Witness testimony from the parties to the case, other individuals who have relevant information about the disputed issues, and experts qualified to give an opinion (such as doctors or nurses).
  • Exhibits – Exhibits are documents or items used to prove your case or disprove your partner’s case; photographs (for example of bruising or other signs of physical abuse); and records: medical records, school records, bank statements or police records.

If you are represented by a family law attorney, they will guide you through the pretrial preparations and advise you of the rules. If you are not legally represented and intend to represent yourself, you need to know your case thoroughly. Either way, prior to the court date, you should ensure that you:

  1. Compile a bundle of all the papers that have been filed or served in the case.
  2. Review and organize all of your evidence into a logical bundle to show the judge.
  3. If you intend to call on witnesses, you should prepare questions to ask your witnesses. It is essential that you know what your witnesses will say. Keep notes about any documents or other evidence that you need to ask your witnesses about.
  4. Make sure that your witnesses are ready not only for questions that you have prepared for them, but also for the questions that your partner’s lawyer might ask.
  5. Prepare questions to ask the defendant’s witnesses. Try to predict what these individuals will say and be ready with follow-up questions or documents to quiz them on.
  6. Do not underestimate your opponent, who will be just as determined as you are to win the case. Try to anticipate all likely evidence issues that may arise.

Your Day in Family Court

Having completed all of your preparations, the day has now come to appear in family court. The judge will observe your demeanor and how you present yourself, so you must reveal your best side at all times:

  • Always be on time for your family court appearance, and dress smartly. Allow extra time for traffic or other possible delays. (If you are delayed for any reason, you should contact the court clerk before your hearing time.)
  • Turn off your cell phone or pager prior to entering the courtroom.
  • When your case is called, you will be shown to the podium in front of the judge, and should stand facing the judge.
  • You will be asked to state your name and your relationship to the case.
  • When you are invited to speak to the judge, do so respectfully and call them “Your Honor.”
  • However tempting it may be, do not interrupt the judge, which is not only disrespectful but may be in contempt of court.
  • Try not to be emotional. Speak clearly and loudly enough so that the judge can hear you, and speak only when it is your turn.
  • Explain in summary why the judge should approve each request that you have made.
  • If you have requested court orders, try to obtain an order on each item that you have asked for. You need to alert the judge if they have overlooked something that you have asked for.
  • Answer all of the judge’s questions and stop talking immediately if the judge interrupts you.
  • If you do not understand something that has been said, ask the judge for clarification and listen carefully to the explanation.
  • You need to clearly understand whatever orders the judge makes and what actions you are required to take. Ensure that you leave the family court with a full understanding of your legal position.