Can the Court Address Child Custody During a Domestic Violence Case?

The issue of child custody comes up frequently in domestic violence cases. It will come up in a variety of ways and for a variety of reasons. The question that many have is whether or not the criminal court judge can address child custody issues.

The simple answer is No.  The criminal court has no jurisdiction over child custody.  However, like most legal questions, the answer is rarely simple.

The simple answer is “No, a criminal court cannot address issues of child custody in a criminal domestic violence case.” A judge presiding over a criminal case has no jurisdiction (i.e. authority) over family court matters.

Criminal Court Has No Child Custody Jurisdiction, But…

Although the criminal court judge will not address chlld custody, there is often a related family law court domestic abuse proceeding.  That court may address child custody albeit on a temporary basis.

That being said, as is the case with many legal issues, the simple answer is not so simple in practice. It is important to keep in mind that though a criminal court may not have jurisdiction, these cases often have a related civil court case open on a Petition for Protection from Domestic Abuse under the New Mexico Family Violence Protection Act. This is bit beyond the scope of this article, but suffice it to say that the judge or hearing officer in that proceeding will have authority to address child custody.

Keep in mind also that though the court may not be able to issue orders regarding child custody, the orders of the court may very well impact contact with the children and therefore child custody. This influence over child custody or contact with the children will come in the form of the no-contact order issued in every domestic violence case.

No Contact Orders and Child Custody

A no-contact order means no contact with the alleged victim.  If the children are in the custody of the alleged victim, then by default there will be no contact with the children.

The no-contact order and the impact it has on child custody has two sides. First, it may be that the alleged victim desires to maintain contact and a relationship between the defendant and the children. On the other hand, the alleged victim may not want the defendant to have any contact with the children.

In case the alleged victim desires contact with the children, it may be necessary to address the matter with the court. The no-contact order means no contact at all, including contact for the purpose of child visitation or custody matters. If contact between the parties were necessary to facilitate custody and time-sharing issues, then caution would dictate modification of the no-contact order.

On the flip side of that, the alleged victim as mentioned may not want any contact between the defendant and the children. Sometimes this is for good reason and motivated by the desire for safety of the children and the alleged victim. Other times, it may be motivated by less pure motives. In either case, if the defendant wants contact with the children, it may be necessary to open a case in the family law court.

Family Court and the Criminal Court No-Contact Order

It may be necessary to seek relief in family court if the no-contact order is not lifted in the criminal court proceeding.  However, the family court may be reluctant or unable to issue orders contradictory to the criminal court orders.

The family law court will be able to address custody and time-sharing despite the no-contact order. To be clear, the family law court will not override the criminal court or lift the no-contact order while a criminal domestic violence case is pending. However, the family law court may address custody and time-sharing through the issuance of orders which address the safety concerns underlying the no-contact order.

In other words, the court can issue custody and time-sharing matters in a way that avoids contact between the parties. There are many ways the court might do this. It will depend on the circumstances of the parties how this will be accomplished.

In conclusion, although the criminal court judge will not issue orders on custody and time-sharing, the courts no-contact order can have very real and enforceable conditions that relate to child custody. As discussed at length in other articles on our site, the no-contact order is taken very seriously and violations are treated quite harshly. It is best to proceed with extreme caution and make sure that all the appropriate measures are taken to avoid violations of the no-contact order.

Proceed With Caution – Miscues in a Domestic Violence Case Can Have Very Serious Consequences

Seek Legal Guidance – Violations of the No-Contact Orders are Serious No Matter How Well Meaning

It is very important to seek an experienced domestic violence attorney.  Self-help even if it is believed it is best for the children can be disastrous on many levels.

Violations of domestic violence, whether innocent, inadvertent, well-meaning or otherwise, can have very serious consequences.  This applies to both criminal and family court.  Violations can result in jail, additional criminal charges, contempt, attorney fees, suspension of time-sharing and all manner of other negative consequences.

Be very careful how you proceed and know the rules so you do not find yourself on the wrong side of the law.

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