Criminal charges can adversely affect divorces where custody determinations are made using the “best interest of the child” standard.
The bottom line is that criminal charges never help the party who has them. However, the type of charge makes a big difference in knowing the impact the charge will have on a divorce proceeding involving children. We could write a book about this. (We will certainly write a blog post or two about allegations of domestic violence and protective orders during a divorce.)
Criminal charges that imply that a parent may not have the ability to provide safe, competent care have the most immediate ramifications in a divorce. Child abuse is an obvious example. But many less obvious charges may indicate a risk to the kids: drug charges or drunk driving (which imply untreated addiction), assaults (which imply a hot temperament and poor decision-making), and gun charges (which raise concerns about safety).
Time is also an essential consideration. For the criminally accused, the prospect of testifying during the divorce is a problem. If the accused is forced to testify in the divorce before the criminal case is resolved, the accused would need to decide whether to testify (which could lead to self-incrimination) or invoke the Fifth Amendment (which makes it very difficult prove that he or she is a safe, competent parent).
Handling a criminal charge during a divorce proceeding can be a delicate situation that involves careful thinking about the ramifications of the allegations and the timing of the two cases. On one hand, there is an extra incentive to beat the charge. On the other hand, if the defendant takes responsibility, there is a better chance that the judge in the divorce case will be understanding. It becomes a balancing act that requires thoughtful and careful consideration with lawyers who understand both the criminal process and family law.
