Child Custody During Federal Case.

A federal investigation, in and of itself, does not automatically change a parent’s existing state custody arrangement. The authority to change or restrict custody rests with state family courts, which must make determinations based on the child’s “best interests.” While parents who are facing federal criminal charges are understandably concerned about the implications of their case, state family courts require reliable evidence to justify restrictions, and these changes must be carried out through lawful court procedures.

Similarly, being summoned for a federal investigation or being indicted for a federal criminal offense should not, by itself, alter your custody rights. These are separate matters. While federal agencies can aggressively pursue criminal charges, the standard of evidence used in criminal court differs from that used in state family court. Even when specific accusations arise, such as allegations of child endangerment or neglect, it remains the responsibility of the state court to assess the allegations and determine if restriction or modification is appropriate, considering the child’s best interests and the parent’s capabilities.

It is essential to understand that custody laws are state-specific, making the specific state in which the case resides critical. While federal law is consistent nationwide, the standards and procedures for custody matters vary widely from state to state. Whether facing potential federal charges or already facing an indictment, maintaining access to your children is important, and state courts recognize the high bar required to change a parent’s established custody rights.

How Do an Investigation and Indictment Differ from a Conviction in Custody Proceedings?

A federal investigation is a broad legal process that can last months or years, and it doesn’t inherently lead to an indictment or a criminal conviction. It can proceed in stages, commencing with a subpoena or warrant, progressing to a target letter, and finally moving to an indictment. An indictment is a formal legal accusation where the federal government charges an individual with a specific criminal offense based on evidence presented before a federal grand jury. Despite the seriousness of the allegations, an indictment is not a criminal conviction. It only signals that the government’s pursuit of a case is underway and the defendant has the right to fight the charges in court.

Furthermore, a conviction or guilty plea in a federal criminal case can carry consequences, such as fines, probation, or prison sentences. However, federal sentencing takes place in a separate judicial process from the family law proceedings that determine child custody.

A target letter is not an indictment, but it is a formal notice that a person has been identified as a potential target of a federal investigation and may face criminal charges. Again, receiving a target letter is not itself a conviction and does not automatically modify a state child custody or visitation order.

Within each of these scenarios, custody and visitation rights are determined by state family court procedures based on a parent’s ability to provide for and protect their child, taking into account the child’s best interests. These are separate legal processes: ordinary custody or visitation modifications generally apply the civil preponderance-of-the-evidence standard, while termination of parental rights generally requires clear and convincing evidence.

Spodek Law Group is equipped to provide both federal defense and family law representation to assist parents through these stages in Alabama, Oklahoma, North Carolina, Virginia, Connecticut, Maryland, Texas, Rhode Island, and across the United States.

When Can a State Court Change Parenting Time or Decision-Making Authority?

If you live in North Carolina, the state’s custody courts apply the “best-interests of the child” standard when considering changes to your child’s living arrangements. When determining whether to modify a parent’s relationship with their child, the court will consider various factors, including:

• The parent’s ability and willingness to provide basic needs for the child
• The parent’s existing relationship with the child
• Evidence of domestic violence or child abuse
• Evidence of substance abuse or alcohol abuse
• The parent’s willingness to encourage the child’s relationship with the other parent
• The parent’s ability to support the child’s need for consistency and stability
• The parent’s mental health and emotional stability

While parents may use a federal investigation or criminal charges to attempt to modify or terminate a state court’s custody order, those allegations do not automatically lead to changes. Modification of an existing child custody order requires showing that there has been a “substantial change in circumstances” since the prior order was issued that affects the child and that modification is in the child’s best interests.

In North Carolina, legal custody refers to the authority to make major decisions on behalf of the child. This can include:

• The child’s schooling or home education plan
• The child’s healthcare and medical decisions
• The child’s religious or spiritual practice

Again, unless there is reliable evidence that altering decision-making authority would be in the child’s best interests, North Carolina’s courts will generally adhere to existing legal custody orders.

Any parent who willfully violates a state court’s custody order, regardless of the circumstances that led to the modification or the other parent’s federal criminal charges, may face a motion for contempt. This can lead to fines, restricted custody or visitation, or even incarceration in some cases. In many instances, violating a custody order can also be used as evidence to justify further changes to the order, often including a change in custody in a subsequent hearing.

What Should Parents Know Before Children Become Witnesses in a Custody Dispute?

When children come into custody disputes where their experiences as the child of one of the parties are at issue, reliability is key. In all cases involving child witnesses, it is critically important that a parent’s attorney and defense team look closely at the reliability of the evidence being used to modify the parent’s rights and visitation as a result of their involvement in a federal case.

There are multiple ways that a child’s perspective can be unintentionally influenced, and experienced attorneys will need to evaluate:

• Repeated interviewing of children by adults that is not conducted by a skilled child interviewer can inadvertently introduce or reinforce details into a child’s account, which are not derived from their own experiences.
• During forensic child interviews, leading questions can unintentionally influence child witnesses, who might feel compelled to agree with the interviewer rather than providing their own independent account of events.
• Young children can also struggle with separating their actual experiences from information that they have been told, or even something they may have witnessed on television.
• It is noteworthy that most children who have been abused by a parent or a caregiver have normal physical examinations, which means physical examinations are also not sufficient evidence alone.
• Once defendants have retained counsel to protect themselves in their federal cases, defendants are also strongly advised not to talk about their federal cases anywhere else except in confidential discussions with their attorneys. This ensures that nothing comes across as admission of guilt.

These vulnerabilities must be clearly and effectively highlighted when defending against criminal charges that threaten a parent’s rights or seeking to maintain a child’s visitation or living arrangement.

Can the Maryland Courts Appoint an Attorney for My Child, and Is This Lawyer Mine?

In Maryland, the courts can appoint counsel for children in contested custody proceedings under certain circumstances. Depending on the child’s age, the parents’ level of conflict, and the nature of the allegations, the Maryland child’s attorney is not necessarily yours, nor does it mean that this attorney is on your side or the side of the other parent.

Based on Maryland’s case law and statutes, there are three types of Maryland child attorneys:

• Privilege Attorney: This Maryland attorney is tasked with communicating with the child and determining if any information the child shares is subject to privilege with the child’s parents or other parties. The attorney makes decisions on whether protected information should be released.
• Best-Interest Attorney: This attorney is appointed to make recommendations to the court regarding what arrangements are in the child’s best interests. The best-interest attorney’s role is to advocate independently for the child’s welfare, and their assessment may or may not align with either parent’s wishes.
• Child-Advocate Attorney: This type of attorney advocates directly for the child’s stated wishes, regardless of whether the lawyer believes those wishes are in the child’s best interests.

While the Maryland courts have the power to appoint child counsel in these scenarios, it is not automatic. Maryland courts need not appoint counsel for the child every time it is requested by a party. A request to appoint counsel for the child in a custody case must be backed by a strong showing of need to protect the child’s interests, particularly when concerns about the child’s safety and well-being arise from a parent’s federal investigation.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.