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Will a DUI or Drug Arrest Affect Child Custody?

Do you have custody of your child or are you in the middle of a custody battle? This experience can be pretty stressful and emotionally taxing. If you have ever had a DUI or drug arrest or if you have one pending, you may wonder if it will have an impact on child custody. If you are wondering about this very question, the answer is: it depends. Each case is different, and there are many factors that could help or hurt your case.

Attorney David J. Cohen has worked with persons on both sides: as a police officer arresting persons charged with DUI and drug crimes and now as an attorney defending persons charged with the same types of crimes. He also represents persons in child custody cases, so he has a comprehensive approach to this area where family law intersects with criminal law. His insight can be key to ensuring you the best interests of the child is achieved, and that usually means building a healthy and strong relationship with both of his or her parents.

Will a DUI or drug crime affect child custody in Montgomery County, PA?

The court always looks to what is in the best interests of the child when determining to grant a parent custody regardless of whether that custody is shared, joint, or sole. The Commonwealth of Pennsylvania has found some crimes to be determinant of whether a parent could be more of a threat to a child than good for the child based on a conviction of certain crimes. 23 Pa. C.S. § 5329 enumerates the specific crimes a family court must consider, and these crimes could have been committed in any jurisdiction and include both the parent and any person living within his or her household. 

The crimes include:

  • 18 Pa.C.S. Ch. 25 (relating to criminal homicide)
  • 18 Pa.C.S. § 2702 (relating to aggravated assault)
  • 18 Pa.C.S. § 2706 (relating to terroristic threats)
  • 18 Pa.C.S. § 2709.1 (relating to stalking)
  • 18 Pa.C.S. § 2901 (relating to kidnapping)
  • 18 Pa.C.S. § 2902 (relating to unlawful restraint)
  • 18 Pa.C.S. § 2903 (relating to false imprisonment)
  • 18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure)
  • 18 Pa.C.S. § 3121 (relating to rape)
  • 18 Pa.C.S. § 3122.1 (relating to statutory sexual assault)
  • 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)
  • 18 Pa.C.S. § 3124.1 (relating to sexual assault)
  • 18 Pa.C.S. § 3125 (relating to aggravated indecent assault)
  • 18 Pa.C.S. § 3126 (relating to indecent assault)
  • 18 Pa.C.S. § 3127 (relating to indecent exposure)
  • 18 Pa.C.S. § 3129 (relating to sexual intercourse with an animal)
  • 18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders)
  • 18 Pa.C.S. § 3301 (relating to arson and related offenses)
  • 18 Pa.C.S. § 4302 (relating to incest)
  • 18 Pa.C.S. § 4303 (relating to concealing the death of a child)
  • 18 Pa.C.S. § 4304 (relating to endangering the welfare of children)
  • 18 Pa.C.S. § 4305 (relating to dealing in infant children)
  • 18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses)
  • 18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and performances)
  • 18 Pa.C.S. § 6301 (relating to corruption of minors)
  • 18 Pa.C.S. § 6312 (relating to sexual abuse of children)
  • 18 Pa.C.S. § 6318 (relating to unlawful contact with a minor)
  • 18 Pa.C.S. § 6320 (relating to sexual exploitation of children)
  • Section 6114 (relating to contempt for violation of order or agreement)
  • The former 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance)
  • 75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs)
  • Section 13(a)(1) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device.

The last three enumerated points refer to DUIs and drug crimes. When the family court judge learns of a conviction of one of the above crimes, the judge must decide if the parent "pose[s] a threat of harm to the child before making any order of custody to the parent."

So, indeed a DUI or drug crime can impact your right to have custody of your child.

How will a family court evaluate your DUI or drug crime in terms of your ability to have custody of your child in Montgomery County?

If you have in the past been charged with a DUI or a drug crime but were never convicted of it, then this arrest should not hurt you in any way. In fact, you should make sure you have had the arrest record expunged just to be safe.

As for convictions of a DUI or a drug crime in the past, then it becomes a little more tricky, as does a pending DUI or drug crime case. The court will conduct an evaluation to determine how the DUI or drug crime will impact your custody case.

The court will first have an in-person initial evaluation. This evaluation may result in the court finding the DUI or drug crime case is isolated and does not impact your right to have custody, especially if you have given good reason for it or have shown you have improved and moved on from it. The in-person evaluation could also result in the court ordering counseling or additional evaluations. Through this process, the judge will come to a determination.

Contact a Pottstown Attorney with Experience in Criminal Defense and Family Law to Ensure Custody of Your Child

David J. Cohen, a former police officer, has extensive experience in criminal and family law. His approach is comprehensive and thorough. He has the insight, the resources, and the commitment to help make sure you are granted custody of your child.

As a family law lawyer, he believes the best interest of the child almost always includes a strong relationship with both parents. As a criminal defense attorney, he knows we all make mistakes and need second chances, and he is here to help you with yours. Contact David J. Cohen Law Firm, LLC today.

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