Recently on our DUI forum a user asked, “I have two DUI arrests. They were both several years ago but now that my wife has filed for divorce I’m a bit nervous that they will come up in court and be used against me in my child custody case. Should I be worried?”
DUI what you need to know
Divorce laws and child custody statutes vary by state. If you have a criminal history or if you have DUI charges which have been filed against you it’s critical that you talk to a divorce lawyer and determine the implications your criminal past might have for your child custody case.
At question for the court is whether or not the abuse and charges are in the past- you have complied with all the orders of the court, paid your fines, attended alcohol treatment, and served your punishment- and you do not have an ongoing alcohol dependency which could pose a risk to your family.
As you might imagine, the length of time since you have been charged with a DUI could be a significant issue in determining child custody. For example, if the charges were 5 years ago and there has not been any further charges, the court may no longer consider you a risk. If, however, you were just charged with driving under the influence (DUI) last week and this is your third charge in a year the court may consider you unfit to parent.
Child custody: joint legal custody vs. physical custody
Another issue the court will evaluate is whether or not you are seeking legal or physical custody. Legal custody will allow you to make legal decisions for your child such as decisions regarding medical care, their education, extra-curricular activities, and what school they should attend. Physical custody, however, will determine where your children resides.
Although the court may have less concern about your DUI charges if you are seeking only legal custody (with the assumption that your periodic alcohol abuse may not impair your ability to make some legal decisions for your child), the court will consider ongoing alcohol abuse as a significant risk to your ability to safely care for your child. For example, your ex-spouse may argue that your drinking makes you undependable or increases the risk that you will drink and drive while your children are in your custody.
Child Custody: Courts determine what is in the best interest of the child
State laws will determine what factors a court will evaluate for custody. Although state laws vary, most states have some general factor considered by the court which vaguely states that the court may evaluate any other “factors” which the court determines are relevant.
Given the vagueness of the law, judges often have to rely on case law in their state to determine how other judges have ruled in similar cases in the past. Talk to your lawyer if you have questions about how a judge in your state may view your specific criminal history and DUI arrests.
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