Pleading the 5th Amendment does not always benefit when trying to defend a client and also represent the client who is going through a divorce. Sometimes, remaining silent can have a very negative effect in a divorce action and the court may take your silences as an admission.
Child custody, often agreed to between the parties takes a different path when criminal charges are pending or convictions are of record. The court will consider the likelihood of a parent who may be sent to prison when determining custody.
A parent who will likely be sent to prison will not have as strong a bond, he, or she, will be away from the child for an extended period of time. Also the parent in jail will have a harder time providing for the child, both monetarily and in terms of providing a stable home environment. Often employers or even landlords inquire about prior convictions. Even after coming out of prison, a parent may find judgments high and the court considers the parent’s moral character when deciding custody. A serious or recent conviction will likely be difficult for the parent to overcome in a custody action.
Among the biggest impact a criminal case may have on a domestic matter is that the divorce action will continue.
In a contested divorce action where there is a custody dispute, one side or the other raises allegations of child abuse. Child abuse is a criminal matter. In this instance, the party alleging child abuse must be careful. Making a false allegation, also a criminal act, of any kind, will come back to the parent making the allegation.
For example, when making a criminal accusation against an estranged spouse in a family law case, often the accuser forgets or underestimates his or her own role in the alleged crimes. Accusing one parent of selling illegal drugs exposes the parent making the allegation. How does the parent know the other parent sold illegal drugs, was that parent involved as well? The parent who makes the allegation may be charged with accessory to the crime.
If a parent suspects or has knowledge of abuse against a child, physical or sexual, the law requires an adult with this knowledge to report it to law enforcement or child protective services. Failing to report suspected child abuse is a crime and there is no exception under spousal privilege. The parent who reports criminal behavior to authorities may also be exposed to criminal prosecution for a number of issues (1) child endangerment; (2) reckless endangerment; (3) or even failure to protect the child.
Unnecessary criminal charges filed in a divorce can cost both parties. When allegations of criminal wrongdoing arise in a divorce action, early action may save time, expense, embarrassment, and possibly even a serious and life-changing criminal conviction and a negative outcome in the custody case.