By Erik Carter
It is not uncommon for a party to be arrested during a litigated child custody dispute, including modifying parenting time. It’s not as frequent as people think, but it does happen.
The mother of your children – whether that is your wife, your ex-girlfriend, or your ex-wife – can be arrested and her criminal case will have an affect on the custody litigation, even though the criminal case will be occurring in a different court with a different judge.
There are two scenarios.
The first is that she is arrested for an incident not connected with the custody litigation.
The second is that it is an incident directly related to the custody litigation.
The key is that you must immediately inform your men’s divorce attorney if you find out about her being arrested. The reason is your lawyer will determine initially how much weight her arrest may have on the custody issue.
For example, her being arrested on shoplifting charges may not have much weight in litigation to decide whether you should receive one more day of parenting time each week.
On the other hand, if the shoplifting charge resulted from her defrauding the store, then it could have a bearing on her credibility as a witness in the litigation case.
Your lawyer will want to immediately obtain a copy of the charging information. Different states have different criminal procedure, but generally a person charged with a crime receives a copy of a document alleging the facts supporting the arrest and/or the criminal charge(s); a listing of the specific criminal statutes allegedly violated; and something stating the next court date and specific deadlines (for discovery, pre-trial motions, etc.).
Your lawyer can obtain these, although you also generally can get them from the criminal court. This – and not “what you heard about her arrest” – will be the initial review by your lawyer to determine how much weight this charge or these charges will have on the case being litigated.
Your lawyer will also want to be aware of her court appearances, especially ones at which she must make a personal appearance. This is because she may actually speak at these appearances, and she could say something very valuable relating to your case.
For example, if she appears at a motion to determine probable cause for a drunk driving charge, and she admits to drinking X number of shots but denies that she was drunk, the fact that she drank can be used in the custody litigation.
It is important for someone to be in court to hear this because that statement may not be recorded in the docket (summary) of the case. It may be in the recording of the hearing (if your state places such hearings on the record), but the recording is generally not published unless it is requested.
Finally, your divorce lawyer can stay in communication with the prosecutor to ensure that he or she is aware of the custody litigation, as this may influence the offers made. Using the above example, the prosecutor may make an offer to her based on her previous record and likelihood to re-offend.
Knowing a child or children are involved may impel the prosecutor to add an additional term of “no consuming alcohol when the children are present” or “no consuming alcohol 24 hours before driving a car with children in it,” which is something you are more likely to be the most diligent about.