Custody and Visitation While You're Under Investigation.

Can a Pending Investigation Affect Custody or Parenting?

No, but not quite. A pending criminal investigation should not automatically trigger a loss of parental rights or restrictions on parenting. Yet, that does not mean a criminal allegation is without potential consequences for parental rights. Criminal allegations alone could give a custody court cause to restrict parenting, even before prosecutors seek a criminal conviction.

When parents engage in criminal justice proceedings, the nature of the allegations is most likely to affect their parenting rights when the allegations suggest instability or danger to their children. In Wisconsin (and the rest of the country), the primary concern is whether it would be in the child’s best interests to restrict parenting, and this is the standard custody courts must apply when considering a child’s safety.

What Relationship Exists Between Criminal Proceedings and Family Proceedings?

Family court proceedings and criminal proceedings in Wisconsin (and elsewhere) are entirely independent and occur in separate courts. Typically, you should not have to make choices between your parenting rights and your criminal defense strategy, and these two aspects of your life should not depend on one another.

How Long Does the Investigation Process Take?

Criminal investigations do not have a universal duration. Some can resolve within months, and some more complicated matters can remain open for a year or more. Similarly, custody investigations vary by matter. A custody investigation can take several months to a year, with several factors weighing in on the timeline.

What Evidence Can a Custody Judge Consider While Criminal Charges Are Pending?

While a criminal investigation remains pending, custody judges have broad authority to consider evidence at the time of deciding custody or visiting rights. Also, they may apply a lower proof standard to the allegations involved, and may decide to limit parenting time or visitation before any charge or conviction. However, while this is the rule in custody and parenting cases, a conviction typically carries more weight than an unresolved allegation.

There are additional issues as well, including:

• To what extent must you (or your lawyer) disclose information about a pending criminal investigation in a custody hearing?
• If a state or federal law enforcement agency has referred your case to Child Protective Services (CPS), what role does that have in a custody determination?
• If the police file a report in the family court case, does the report have probative value?
• If CPS substantiates allegations of child abuse or neglect, what evidentiary or administrative value does this finding carry?
• If a grand jury has issued an indictment, what probative value does this lead to in a custody proceeding?
• If the state has a presumption of domestic violence against you, how does this affect the outcome?
• If the state issues a temporary order of protection, how does this affect the presumption of fitness in the family proceeding?

Do All of These Issues Apply in Every Custody Case?

No. Custody standards, protection-order procedures, and domestic-violence presumptions vary by state, and they are often decided by statute or a state supreme court ruling. Some issues have no direct relevance to custody disputes in family court, while others may prove decisive.

What Role Does Violence Against Children (or Other Household Members) Play in Custody Determinations?

Generally speaking, all forms of violence involve some risk of harm to children. However, violence that directly involves the child or other members of the child’s household generally carries more weight in determining what the best interests of the child are.

If violence is involved, will you still lose your parental rights?

In Wisconsin (and in other states), custody and visitation determinations are fundamentally determined by “the best interests of the child,” and a child’s best interests include a presumption that the child is entitled to both of its parents in an effort to build a stable environment and a relationship.

If violence is involved, how could you fight to preserve your parental rights and visitation?

How do emergency custody orders work during an investigation?

How Long Does a Temporary Custody Order Stay in Effect?

A temporary order of custody generally remains in effect while the underlying case is pending, and it remains in effect during any appeal proceedings as well. Additionally, an extended separation could result in a child creating a routine with the other parent, and, as a result, the court could feel hesitant to disrupt this new arrangement if it appears to be in the child’s best interests.

Can I Request Visitation While the Criminal Matter Remains Unresolved?

Yes. Parents can (and often should) request temporary visitation rights while a criminal investigation remains unresolved. In this case, the court may grant visitation pending a hearing or a trial, and any limitations on visitation would have to be based on the child’s best interests.

When Does a Court Issue an Emergency Custody Order?

Family courts issue emergency custody orders when they believe there is an emergency or that a child is in imminent danger. Statutes in the state or family court’s own procedural rules prescribe the deadline for giving notice to the other party and the standard for obtaining an order in an emergency. If there is no notice, ex parte orders of custody generally must provide the non-appearing parent an opportunity for a prompt noticed hearing.

Are There Any Other Family Court Procedures That Could Affect Visitation or Parenting?

Yes. If you are under investigation by a criminal law enforcement agency, there are various other family court procedures that could affect your visitation rights as well. This includes filing a motion to suspend or terminate parental rights based on an allegation, filing a motion to modify a child support order, or seeking to establish a home for the child in the other parent’s home (which might have negative implications if you eventually seek to retain joint custody or visitation).

Does a Pending Criminal Investigation Mean I Can Stop Enforcing My Visitation Rights?

Generally, an existing order of custody, visitation, or parenting rights remains enforceable until the family court decides to modify the order. Unless the relevant state statute provides a specific emergency, allegations alone are not enough to justify the unilaterally denying a parent’s visitation or parenting rights. A temporary order of custody or visitation typically must be sought, or an existing order of custody and visitation must be modified, before a parent’s visitation or parenting rights can be legally denied.

How can I see my child under a no-contact order?

Why Has the Prosecution Requested No-Contact?

Sometimes the prosecution will request that no-contact conditions be included in the bail conditions. These conditions are meant to prevent the investigation from being compromised, but they can have the incidental effect of preventing you from returning to your home and from communicating with your children or other family members as well. If you are facing no-contact restrictions in your bail conditions or a pending criminal no-contact order, then you cannot see your children or attempt to communicate with them if they reside with a protected person.

Can I Get Permission from the Family Court to See My Child or Communicate with My Child?

While permission from the family court may be sufficient for you to communicate or see your child in some circumstances, a no-contact order cannot be modified except by the court that issued it. Even if a family court grants you permission to see or communicate with your child, you must also obtain permission to see or communicate with your child from the court that imposed the criminal-court restriction.

Does a No-Contact Order Prevent Me from Seeing or Communicating with My Child?

The actual language of the no-contact order dictates what you can and cannot do. Some no-contact orders specifically permit contact and communication with children, while others prohibit such contact or only permit indirect contact through a third party.

Are Third-Party Exchanges Permitted?

If you have a third party facilitating exchanges or mediating communication with your child, this arrangement is generally only permissible if every controlling order allows the arrangement. For example, if a no-contact order prohibits you from contacting your child, but allows contacting your child’s other parent, then a third party could facilitate communication between you and your child’s parent, but still cannot facilitate contact with your child.

How Do Parenting Applications Fit Into the Process?

If the parents are using a parenting application for communication purposes (such as to coordinate a child’s medical appointments, education, and other needs), then the use of a parenting application does not authorize any communication that is otherwise prohibited by a no-contact order.

Are There Any Other Scenarios Where I Can See My Child?

Yes. For example, if the school is the site for a pickup, and the school gives you the right to participate in the school pickup, this right must also be within the bounds of every controlling order, including any custody, visitation, or no-contact order.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What can I safely say in custody and CPS proceedings?

What Should I Disclose During a Custody Interview?

The attorney-client privilege applies when you talk with your lawyer, and the legal privilege applies when you talk with investigators (depending on the circumstances). However, these protections do not apply to interviews with custody evaluators or similar neutrals. While custody evaluators and other neutrals are generally bound by confidentiality, their findings may still be subject to disclosure and review by prosecutors in criminal matters. For example, if you tell a custody evaluator that you are an unfit parent or that you committed some act that would give the other parent grounds to keep the child in their home, the custody evaluator’s report may be subpoenaed.

What Additional Concerns Do I Have During Custody Interviews?

If you have both a family court case and a criminal matter pending, and you need to interview with a custody evaluator or other neutral, then you may want to have your family court lawyer and your criminal defense lawyer coordinate with each other before you meet with the evaluator. Your family court lawyer will know the issues relevant to custody and visitation, and your criminal defense lawyer will know what you can and cannot say in order to avoid incriminating yourself.

What If I Need to Invoke My Fifth Amendment Right Against Self-Incrimination in the Family Court Hearing?

While a court can hear a plea of the Fifth Amendment, this plea does not necessarily shield you from adverse consequences in civil cases. In civil cases (such as custody cases in family court), a judge can draw an adverse inference if you invoke your Fifth Amendment right. In fact, a judge may weigh that inference against you along with the rest of the evidence, but your invocation is not treated as an admission, and the inference is not automatically sufficient to support a finding against you. Of course, if you answer the judge’s questions in the family court case, this answers can often provide valuable evidence for the prosecution in the criminal investigation.

What Role Does Child Protective Services (CPS) Play in the Process?

If you or your children are the subject of a CPS investigation, this investigation may run concurrently with any criminal investigation and/or family court proceedings. If CPS gets involved, you may also have to deal with a CPS caseworker. Statements that are made to a CPS caseworker during a CPS investigation can end up being entered into evidence in criminal court or family court. While CPS is generally subject to the Fifth Amendment, voluntary statements you make to a CPS caseworker generally do not fall under the protections afforded to those who are compelled to testify in a court of law or an interrogation.

How Do I Move From Supervised Visitation to Unsupervised Visitation?

Why Have Supervised Visitation?

Supervised visitation is generally a temporary arrangement. Its purpose is to address the issues that caused a court to restrict a parent’s visitation or parenting rights. With supervised visitation, you can still see your children while the court or a child protective agency determines whether you may have unsupervised visitation or parenting rights in the future.

Who Is the Visitation Supervisor?

A visitation supervisor can be a professional monitor, a trusted relative, or someone else, such as a teacher, a coach, a licensed therapist, or another qualified individual. The requirements for serving as a visitation supervisor are set by the family court’s custody order and relevant state law.

How Do I End Supervised Visitation?

The specific requirements for ending supervised visitation vary by state and depend on the circumstances involved in each individual’s case. If you have a successful period of supervised visitation, you can ask the court to permit unsupervised contact. If the court is not yet willing to permit unsupervised contact, then it may condition expanded visitation on your completing various steps, including but not limited to:

• A particular length of time of sobriety
• Drug testing or treatment
• An anger management class
• A professional psychological evaluation

Who Pays for Supervised Visitation?

Supervision costs are addressed either in the custody order or by applying the relevant state statutory provision.

Will the Visitation Supervisor Prepare a Report?

If the supervised visitation arrangement allows for reporting to the court, then the visitation supervisor will prepare reports regarding any concerns or observations. These reports will be entered into the court file in the family court custody proceeding, and they may lead to modifications in visitation or parenting time.

Is There an End Date for Supervised Visitation?

Most supervised visitation arrangements do not contain an end date. Therefore, they will continue to be in effect until the family court modifies the arrangement or the parties reach a settlement.

How Do I Get Expanded Parenting Time?

If you want to expand your visitation rights or move toward unsupervised parenting time, then you must show the court that you are capable of providing for the children’s needs without the supervision of another adult. If you have missed your supervised visitation dates, then this will weigh against you when you seek to expand your visitation rights in the future.

How do I restore custody after the investigation or criminal case ends?

While a dismissal of charges or an acquittal at trial does not typically erase all familial consequences of the criminal proceeding, parents are entitled to request a custody modification after charges have been dismissed or a conviction has been overturned.

Does a Changed Criminal Outcome Automatically Restore Previous Parenting Arrangements?

No, it does not. In fact, the family court generally still focuses on the child’s best interests even if a parent has been dismissed of all criminal charges, and this includes any need for continued stability resulting from the underlying circumstances.

How Are Custody Orders Enforced in Wisconsin?

In Wisconsin, custody orders can be enforced through contempt proceedings in family court. The non-complying parent may be ordered to pay fines and, in some cases, may face incarceration. Depending on the circumstances, Wisconsin courts may also award the non-interfering parent replacement parenting time in the event that a placement violation occurred. For example, if one parent improperly denied a child’s time with the other parent, the court may award additional parenting time to preserve the child’s relationship with the other parent and promote overall stability.

Can Placement Interference Lead to Criminal Charges?

In Wisconsin, placement interference can also lead to criminal charges under certain circumstances. Parents denied their rightful parenting time can report the violation to law enforcement and the violation could, in some cases, become a criminal offense.

What are the Limits on Modifying Wisconsin Custody Orders?

In Wisconsin, state law sharply limits major modifications in both joint and sole custody cases during the first two years after a custody or visitation order is issued.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.