A mother getting arrested in the middle of a custody battle is an extraordinary event. It is something you have no control over. It is something you usually don’t find out about until well after it has happened. But when it does happen, it is one of those events that you should be prepared to take advantage of, if that is possible. The specifics of the arrest will determine how you react and how it affects your case. For example, her getting arrested for causing an accident while drunk with the kids in the car will be treated differently than her getting arrested for an act of civil disobedience at a political rally. But the fact of her getting arrested can generally be used to your advantage if there is an on-going custody dispute.
Also, certain situations will require emergency pleadings (she’s arrested as part of an undercover crack buying sting, and the kids need to go somewhere quickly). This article will deal mainly with issues of discovery and restraining orders.
The first thing to do is to contact the police department that arrested her and get a copy of the police report. These are generally public documents, and there may be a nominal charge for the copy. The police report should have names of arresting officers and witnesses, and will give a summary of what happened.
Find out what court she will be in and when. Try to attend the initial hearings, either yourself or someone from your attorney’s office. The initial hearings are generally where the prosecutor must lay out the evidence to charge her, what the charges are, and what her bond is, including any conditions. It is also a chance for you (either yourself or your attorney) to discuss special conditions of the bond. For example, if a condition of her bond is that she has a restricted license, you may want to ask the criminal court to let the divorce court decide if she can drive to and from visitation.
Consider filing a Restraining Order in the divorce court, to prevent her from using marital assets to pay for her criminal case. For example, request an order that she cannot take any more money out of the home equity line of credit. While the other side may say that this is a debt that she will assume sole responsibility for in the final Decree, it remains a loan against your credit. If she doesn’t pay it, you take the hit.
Send discovery requests to her divorce attorney, requesting all communication between her and the prosecutor, her and investigators, and any statements she has made to anyone. They may respond that this is privileged communication, but not all of it will be.
You should take her deposition. The timing of the deposition may be immediate, or it may be after you have learned more about the arrest. In the deposition, she is allowed to assert her rights under the Fifth Amendment (not to testify against herself during an on-going criminal matter). Many states permit a court in a civil proceeding to draw “adverse inferences” from a witness’s refusal to answer certain questions. This is different from a criminal proceeding, where courts are explicitly prevented from drawing any inferences or conclusions from a witness’s refusal to testify. For example, as the defendant in the criminal proceeding, she has a right not to testify, and such assertion cannot be used against her, since she is presumed to be innocent and it is the State’s burden to prove her guilty beyond a reasonable doubt. In a civil matter, however, since there is no determination of guilt or innocence, the Court is permitted to draw inferences from her refusal to testify or from your assertion of her Fifth Amendment right not to testify regarding the alleged incident.
Find out who she has talked to. These people have no Fifth Amendment right not to testify. You can learn valuable information, especially if she is telling them details about the arrest or even the crime itself.
Let the custody evaluator, Guardian Ad Litem, therapists, caseworkers, and anyone else potentially involved in making a recommendation to the Court concerning the custody or visitation issues, know about the arrest. Especially let them know everything you have found out, so they can test it against her statements. Make sure they follow up with her and ask her about it.
Coordinate with the prosecutor. Her chief tactics will be to either delay the criminal matter until after the divorce is over (so that she can testify truthfully “I haven’t been found guilty”) or to plead guilty to a lesser offence (for example, pleading to Reckless Driving instead of Driving While Intoxicated). You want to be sure the prosecutor knows your concerns as a father, especially if the crime involves or could affect the children.
Nobody wants anybody to be arrested. Many arrests do not result in criminal convictions. However, if the other party in a custody dispute is arrested, you have the right to learn everything about this situation, so the judge can determine how it affects the children. Her strategy will be to “wait and see” and then to make sure the criminal case doesn’t end before the divorce case. Your strategy will be to gather as much information as you can, whether or not the criminal case is concluded.