Arrest During a Custody Fight: What if it’s you?

Custody disputes can carry on for months, sometimes years. Because of that length of time, it is not uncommon for a parent involved during in a custody dispute to be arrested. The arrest may have nothing to do with the custody dispute. The arrest may have nothing to do with the child or the other parent. The arrest may be completely groundless. But, the arrest will be a factor in the custody dispute.


The Judge hearing the custody dispute will at a minimum want to know the potential jail sentence, if any, so that he or she can determine any potential effect on an award of custody or parenting time. If you are the parent who is arrested, you need to take immediate action to protect your interests in the custody dispute as well as the criminal matter. You need to be aware that the custody dispute is a civil proceeding, so there is no “presumption of innocence,” because the civil court will not find you “guilty.” Also, the various constitutional rights that you have as a defendant in the criminal proceeding do not automatically attach to you in the civil proceeding. You must specifically invoke your constitutional rights in the civil proceeding.

The other side has the right to ask you questions about the alleged criminal incident. You must assert your rights under the Fifth Amendment to the US Constitution to not answer questions if the answer would tend to furnish one link in the chain of evidence necessary to convict you of a criminal charge. Also, Courts are generally bound to respect your invoking the Fifth Amendment unless it is obvious perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency to incriminate.

You also need to be careful about discussing the alleged incident with friends, family, and other people. There is no Fifth Amendment right that you can invoke to prevent those people from testifying as to anything you may have told them. While some of your statements to other people may be hearsay, they may also be allowed into evidence, on the grounds that you are present and able to testify to refute those statements. The fact that you may have already informed the Court that you intend to assert your Fifth Amendment right against self-incrimination will not protect you in this instance. 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, you have a right not to testify, and such assertion cannot be used against you, since you are presumed to be innocent and it is the State’s burden to prove you 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 your refusal to testify or from your assertion of your Fifth Amendment right not to testify regarding the alleged incident. You also need to be aware that disposing of the criminal case does not dispose of it in the civil court. For example, obtaining a  verdict of not guilty, or pleading to a lesser charge, or even having a criminal charge dismissed does not mean that you cannot be questioned about it in the civil matter. For example, suppose you plead guilty to a charge of Reckless Driving and in exchange, have the charge of Driving While Intoxicated dismissed. The opposing counsel can still question you about the incident, and the civil court can still determine that you were driving while intoxicated, since the finding by the civil court is not a determination of guilt. Getting arrested during a custody dispute requires that your family law attorney and your criminal attorney co-operate, to protect your rights in both cases. Make sure you put them in contact with each other as soon as possible, so a co-ordinated strategy is developed.

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