Facts:
My client and his ex have a young child together. There has been a lot of hostility between them. My client filed a paternity action to get some clarity on the custody situation and child support. He used a family law lawyer for that. The paternity action did not settle at mediation, and tensions rose even higher.
During a time-sharing visit at his home only three weeks after the failed mediation, the mother tried to leave with the child after only 15 minutes. She secretly recorded the interaction. When my client refused to allow her to take his child away, she called the police. She alleged that my client spat on her during the confrontation.
The police arrived and interviewed both parties. Not knowing that spitting could be considered battery, my client admitted to it. He was arrested and charged with domestic battery. The mother then filed a domestic violence injunction against him. The effect of both was that he could not see his child.
The Case:
I quickly realized that the secret recording of my client was a crime. I reported it to the prosecutor, but they didn’t care. However, because the recording was illegal, it could not be used in court.
I challenged the domestic violence injunction at a final hearing, where I cross-examined the mother under oath. When she was finished, I asked the judge to involuntarily dismiss the injunction on the basis that she had failed to prove her case. The judge agreed and dismissed the domestic violence injunction.
In the criminal case, the mother pushed the charge against my client. She wanted him to pay. So, the prosecutor filed the charge for domestic battery. It was impossible to argue that he didn’t spit on her when he had admitted it on video to the police.
The Result:
My client was allowed to enter the DVP diversion program and will have the charge dismissed. He had already completed counseling as part of the paternity action, so the guarantee of a dismissal of the charge was too good to pass up. He will also be able to seal his record.
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