Constitutional Rights in Family Law

Posted on Nov 14, 2022 by Katie Carter

We’re all used to the idea that, by virtue of the Constitution, we have these certain, unalienable rights. And it’s true – we do.

But the reality of what those rights are, and what they mean, and how and when they apply is a little bit more complicated.  In a lot of ways, family court is maybe different from the court you’re expecting, if the majority of the experience you have with the court system comes from legal dramas on TV.

But what about my rights?! What do you mean, they don’t apply in family court?

Well, most of the protections guaranteed by the Constitution refer to a situation where a person has been charged with a crime. A crime – like assault, battery, or murder – is criminal in nature. A divorce, on the other hand, is civil. Civil basically means ‘not criminal’. Lots of things fall under a civil heading, like things that are related to contracts or property.

What kinds of rights does the Constitution guarantee that don’t apply in a family law context?

I’ve been reading up on a lot of Father’s Rights groups lately, and a lot of what they seem to fixate on is the fact that their Constitutional rights aren’t protected in ‘family court’ like they are in other areas of law.

While that is, essentially, true, it also reflects a lot of misunderstandings, mostly in exactly what the Constitution guarantees, and when those protections apply.

They misunderstand ‘family court’, too, and exactly what it means. While there are specific courts – usually termed ‘juvenile and domestic relations district courts’ – that relate specifically to family law-related issues, like custody, visitation, child support, protective orders, etc. The circuit court, which is not a ‘family’ court also handles divorces.

In circuit court, judges handle both civil and criminal matters, but the rules that apply to each are very different. If you read the Constitution, specifically the 5th and 6th amendments, you’ll see that there is specific, overt reference to a crime included.

Divorce, custody, and visitation cases are not crimes. In most cases, there’s no criminal component – though, technically speaking, committing adultery is still a crime in Virginia, and many domestic violence cases can include elements that have a criminal component (including, sometimes, criminal matters pending alongside the domestic relations matters), but the actual divorce or custody case itself is still civil.’

Aren’t I innocent until proven guilty?

In criminal law? Yes. In family law? We’re not determining ‘guilt’ or ‘innocence’. No one has committed a crime (or, if they have, its handled separately from the civil divorce or custody case), and there is no final pronouncement of either guilt or innocence. It’s just a divorce, or it’s just an order resolving custody and visitation.

If you were accused of something – say, drug use, or violence against the children – and ultimately that accusation impacts the divorce and/or custody arrangement awarded in your case, it’s not criminal in nature, so you weren’t found ‘guilty’ of anything.

Not only that, but custody and visitation specifically are decided based on the ‘best interests of the child’. So, even if you were ‘guilty’ or something, which the court isn’t there to determine, the best interests of the child could indicate that an arrangement other than the one you were hoping for is in the children’s best interests. After all, it’s not YOUR best interests here; it’s theirs.

Don’t I have the right to have counsel provided for me?

Again – no. That’s a right that is protected in a criminal case. It’s to avoid someone being unfairly deprived of their liberty (basically, jailed). The way the Founding Fathers considered it, jail time – a possibility in a criminal case – was the most serious of all potential punishments. They thought that someone facing that shouldn’t have to go through it without legal representation.

Because, typically, in a civil case, the penalties are less severe (usually involving a penalty of money), it’s not treated the same way. ‘Winning’ or ‘losing’ custody isn’t really the way the court looks at it; it’s not a mom versus dad type verdict. It’s a question of what custody arrangement is in the best interests of the children, and how to accomplish that – not a definitive ‘verdict’ meaning that one party ‘wins’ over the other.

In a family law case, you’ll have to pay your own way. You definitely can’t get the Commonwealth to pay to cover your attorney, and you probably can’t make your husband responsible for your legal fees, either.

What about my right to remain silent?

Again – this is a right in a criminal case. Though I guess you could technically remain completely silent, it would definitely be used against you at some point. If you don’t file a responsive pleading, if you don’t answer discovery, if you don’t speak when you’re spoken to, if you don’t cooperate with your lawyer throughout the process, well, the case will go on without you. You just probably won’t like the results.

In a criminal case, though, it doesn’t mean you stay completely silent; it just means you don’t have to participate in a police interrogation without your lawyer present. The police won’t be interrogating you in a divorce or custody case.

Don’t feel comfortable doing anything without your lawyer present? That’s probably fine. Whether you participate in mediation, get questioned in a deposition, or attend a settlement conference, you can bring your lawyer.

What about self-incrimination?

That’s one you do get! If something that has been alleged in your case is also a crime (like, that you committed adultery), then you don’t have to offer anything incriminating against yourself.

Oh wait – except, in a criminal case, it can’t be used against you; in a family law case, it can.

But what about my RIGHTS?

Yeah, like I said, it’s really less about your rights and more about the rights of the kids. Oh, and, even in just a plain divorce case with no kids, it’s not a situation where the judge determines guilt or innocence. It’s also not a case where anyone faces any jail time. For the most part, penalties involve (1) getting less than the marital share (though that’s fairly extreme and rare, and there’d certainly be extenuating circumstances, and (2) fines. “Losing” custody is not considered an outcome like going to jail, because if you ‘lost’, it’s because it’s designed to benefit the child’s best interests.

The civil system is different than the criminal law system. But family law isn’t the only area of law where Constitutional protections (protected for people facing criminal charges, I’d again point out) don’t apply. Specifically, immigration and bankruptcy spring to mind. There are a lot of systems that have alternate rules that are used, and it’s not because something nefarious is going on. It’s not. It’s just that it’s not criminal, and the Founding Fathers didn’t lay out what was going to happen in these types of cases; they were concerned about criminal charges, since they’re the most severe in terms of the consequences.

I’m not saying that you’ll necessarily feel good about it, especially if you went into this thinking that things were going to move forward differently than they actually are. But it’s really not because something sneaky is going on, or because someone somewhere is trying to deprive you of rights you actually have in this situation. It’s because it’s a civil case, and civil cases are different than criminal ones.

For more information about the divorce process in Virginia, download a free copy of our divorce book, our military divorce book, or register to attend our monthly divorce seminar. Give us a call at 757-425-5200 to schedule an appointment or to discuss your case in more detail.