child-custody-fallout-from-a-federal-drug-case.

The custody issues that arise before trial in a federal drug case can take many forms. When the criminal allegations in a parent’s federal drug case involve children, it will not be uncommon for the accused parent’s access to the children to be restricted until the criminal case concludes. If the criminal case is accompanied by an investigation by the state’s Child Protective Services or a similar agency, this investigation can also raise serious questions about the parent’s custody and parental rights.

When Can a Parent Expect to Regain Custody?

Regardless of the circumstances under which a parent lost custody, when they can expect to regain it will depend on both the specific nature of the criminal allegations and the current status of the criminal case. In many cases, this will mean that the parent will not be able to regain custody until the parent can demonstrate that the criminal charges are not supported by the evidence. As this explanation makes clear, criminal cases do not always result in a conviction, and for various reasons, a federal prosecutor may decide to dismiss charges before a case goes to trial. However, a government dismissal generally requires leave of court under Federal Rule of Criminal Procedure 48(a), and the court may consider the government’s stated reasons.

Will the Criminal Case Affect Custody?

The criminal case will have the potential to affect custody. While a custody court will have significant concerns with the criminal case, its concerns will differ from the criminal court’s. In a criminal case, the central question is whether the parent violated the federal law and is guilty beyond a reasonable doubt. In a custody case, the central question will be whether it is in the children’s best interests to reside with a parent who has a pending federal criminal charge. These are two very different questions, and as a result, the answer to one will not necessarily determine the answer to the other. This does not mean that a criminal arrest is not important in a custody case, but it does not mean that a parent will automatically lose custody.

When Can a Drug Allegation Produce Emergency Custody Limits?

Federal drug investigations are uniquely complex and time-consuming. It is not unusual for a parent’s arrest in a federal drug case to be the culmination of a multi-year investigation by the federal government. This means that before the parent is arrested, the government may have already used wiretaps, surveillance, informants, and controlled purchases to gather evidence of a drug crime. As a result, a parent’s criminal charges could put their child’s safety at risk even if the evidence of a criminal offense is lacking.

A federal drug investigation is typically a team effort by federal law enforcement agencies as well. While some cases are the result of cooperation between agencies such as the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), the U.S. Department of Homeland Security, and the U.S. Postal Inspection Service, others are conducted by one of these agencies on their own. Depending on the investigation’s goals, it could involve cooperation between any combination of agencies, and it could involve agents, analysts, and prosecutors from various parts of the government. The parent accused of federal criminal charges may not know about the investigation until after their arrest and the initial criminal hearing.

As a result of the time it takes to build federal criminal cases, as well as the specific agencies involved, criminal allegations of a drug crime in a federal case can raise questions of a parent’s child safety in a family court case. Family court judges recognize the sensitivity of the situation and understand the parent’s desire to maintain a relationship with their children. However, the family court judge must focus on the children’s safety and a drug allegation can make this difficult. This does not mean that a parent will automatically lose their children as a result of a drug allegation in a federal case, but it does mean that the parent’s attorneys will need to act quickly, with the goal of reducing the disruption to their children’s lives.

Which Criminal Evidence Can Weaken a Custody Safety Claim?

The first step toward resolving custody issues raised by a parent’s federal drug accusation is to challenge the validity of the criminal charges. This may involve challenging the legitimacy of a warrant that led to a search and seizure, the methods used to collect the evidence in the first place, and the admissibility of that evidence. Along with challenging the legitimacy of the charges and supporting evidence, the federal trial judge will also hear arguments based on the Fourth Amendment, the protection against unreasonable searches and seizures, and the Fifth Amendment, which protects defendants’ interests in their freedom to remain silent. Even if these constitutional rights were violated, the issue of whether the parent is guilty or not is not the only question at hand. Even the mere allegation of drug-related offenses can trigger custody and parental rights issues in a family court case. As with all federal criminal cases, if the government cannot support criminal charges with the evidence at hand, this can weaken a drug allegation to the point that it could lead to a dismissal in federal court. Depending on the case, constitutional violations, procedural errors, and failure to comply with evidentiary standards can all undermine the government’s case. For example:

• Fourth Amendment violations involving a defective warrant affidavit that failed to provide the probable cause required by law, and that should lead to a suppression of the evidence that obtained during the search.
• Unlawful wiretaps and recordings. These are powerful investigative tools in federal investigations and prosecution of federal drug crimes, but evidence obtained in violation of the Constitution or applicable law may be subject to suppression, subject to recognized exceptions.
• Insufficient evidence. When the government cannot meet the minimum requirements for presenting the evidence to prove a specific charge, federal prosecutors may decide to dismiss some or all of the charges involved. If the court suppresses evidence in a federal criminal case, this may have ramifications both within the criminal case itself and in any associated custody matter. A judge in a criminal case will not automatically dismiss every charge brought by the government just because a single or even multiple evidence items are suppressed. Instead, the government may still pursue a criminal conviction using the evidence that remains. However, the successful suppression of a piece of evidence often greatly reduces the likelihood of a criminal conviction, as it removes one or more elements required to prove the offense at issue.

How should defense lawyers coordinate plea and custody decisions?

The most effective way for parents to protect their children’s safety and their relationship with their children is to engage experienced legal representation to seek a favorable resolution in their case. Most federal criminal cases resolve through plea bargaining rather than going to trial, and the terms of a plea agreement can affect both criminal and custody matters. With a plea bargain, the government may agree to dismiss or not bring some charges, recommend a sentence, or take another specified action in exchange for a guilty plea. Plea bargaining is also commonly used to reduce a defendant’s prison sentence.

For a parent who is facing federal criminal charges, plea bargaining can also be another way to resolve issues with their children’s custody and parental rights. While this is not common, plea bargaining in a federal criminal case may have different implications in other contexts, such as when a parent works out a cooperation agreement with federal prosecutors. A cooperation arrangement may take the form of a non-prosecution agreement or a plea-and-cooperation agreement, with terms that may provide for charging or sentencing concessions in exchange for substantial assistance. Such an arrangement does not necessarily avoid a guilty plea, and many cooperation agreements are incorporated into a guilty plea.

In all cases, it is crucial to engage a skilled legal team to defend against the federal drug criminal charges and handle any related custody disputes. It is important that your defense counsel works closely with your family lawyer so that a coordinated approach can be taken and you can get the best possible outcome for your family. Spodek Law Group can help parents take all necessary steps to resolve their cases in the best possible way and get the best possible result under the circumstances.

If You Want Someone to Look at Your Case

Reading about a charge is not the same as having someone read your file. Spodek Law Group keeps an attorney on call around the clock, and the first consultation costs nothing and runs as long as your questions do. The number is 888 348 8028.