What You Need to Know About Child Custody if You are Charged with a DWI in Texas

Family matters can be highly emotional and stressful, but for many of us who have children, there is nothing more emotionally-charged than child custody matters. You could be married and be thinking of a divorce. You could be in the middle of a divorce. You could be in a non-marital relationship and be splitting up. Whatever the case may be, if you have a child with the other partner, there are things you must consider if you want custody of the child, whether it's sole or joint. One of those factors to consider is a current or potential criminal record.

If you have recently been charged with a crime, particularly a DWI or a felony, and you are in the middle of child custody determinations, then you must first consider an experienced DWI defense attorney who has the credentials and experience to help you beat your DWI case at trial. DWI and criminal defense lawyer Doug Murphy has been defending clients in the Houston, Texas metropolitan area for several decades.

As a testimony of his competency, Doug Murphy is Board-certified as a DWI criminal defense attorney by the National College of DUI Defense and is Board-certified as a criminal defense attorney through the Texas Board of Legal Specialization. There are only two attorneys in Texas who hold this dual distinction, and Doug Murphy is one of them. He understands what a DWI criminal conviction can do to your life outside of the court system, and he is committed to helping make sure you endure the least amount -- if any -- consequences, like losing custody of your child.

Child Custody in Texas: an Overview

In Texas as elsewhere, the best interests of the child are always what and how conservatorship, which is the term used in Texas for “custody,” is determined. That standard serves as an umbrella for more specific factors, and these include:

  • Past parental involvement in child's affairs;
  • Parental cooperation;
  • Household stability;
  • Continuity;
  • Child's wishes; and
  • Abuse and other criminal issues.

You could be the ideal parent with consideration to all of these factors except for being convicted of a crime. When the latter happens, you could be denied child conservatorship or have it taken away.

In Texas as elsewhere, there are two basic types of custody: (1) sole managing conservatorship; and (2) primary joint managing conservatorship. Sole managing conservatorship is rarely granted, but when it is, it is because one parent has been absent in the child's life or there is credible evidence of abuse (child or spouse), criminal activity of any kind, and/or drug or alcohol abuse. Joint managing conservatorship, on the other hand, is most common: there is a presumption that it is in the child's best interests to have both parents a part of his or her life.

Not all criminal convictions will lead to the other parent's appointment as sole managing conservatorship. Some convictions may lead to joint managing conservatorship with you as the noncustodial parent, also known as the possessory conservator. Should you lose custody rights altogether, you usually are granted visitation rights, but these, too, can be taken away depending on the nature and gravity of your criminal conviction(s).

Criminal Convictions that Impact Child Custody

There are a number of criminal convictions that can impact your child custody status. They primarily focus on violence and abuse: abuse of a former spouse or partner, abuse of the child, sexual abuse, sexual assault, murder, alcohol abuse, or drug abuse, though other criminal activity can matter, too. These types of criminal activities suggest that the offender has an anger management and/or substance abuse problem that can create an unstable, unhealthy, and possibly violent home environment.

A Texas judge will review your case and consider a number of things, including the following:

  • The crime committed;
  • The victim of the offense (e.g., family, friend, acquaintance, or stranger);
  • Age at the time the crime was committed;
  • How long ago the crime was committed;
  • Your sentence and its successful completion;
  • The extent of your criminal history, including multiple convictions regardless of what they are; and
  • Any mitigating factors.

The judge will consider the above qualifications in light of the child to determine if you are unfit as a parent. If your criminal record suggests that the child may be subjected to violence, instability, or other danger, then your chances of conservatorship are slim, and that is true even if you have never directly harmed your child.

Below are examples of crimes and how convictions of the same can come between you and your child.

DWI Conviction

If you have a DWI charge pending, a recent DWI conviction, or prior DWI convictions, then your appointment as a joint conservator could be in jeopardy, especially if the other parent -- presumably without a DWI conviction -- requests Sole Managing Conservatorship.

A DWI is a red flag for a court. There is a presumption that you will not be able to provide a safe and stable home environment for your child. Not only because you may be sentenced to jail for a period of time, but if your driver's license is suspended, you cannot provide transportation for your child. On the other hand, if you have your driver's license, there is the suspicion that you may place your child in the vehicle with you at the time you are legally over the 0.08 percent limit.

Driving under the influence of alcohol or drugs with a child under the age of 15 is a jail felony in Texas. If convicted, you are facing up to two years in jail, a fine up to $10,000, and driver's license suspension for 180 days. You cannot afford to be convicted of DWI with a child passenger, or else your conservatorship rights are severely at risk. Other felony DWIs that can result in denial of joint managing conservatorship include a third or subsequent DWI, intoxication assault, and intoxication manslaughter.

If you have three or more DWIs, it suggests you have a substance abuse problem and are a habitual drunk driver. On the other hand, intoxication assault and intoxication manslaughter may not be the result of habitual drinking and driving but are more the result of an unfortunate mistake, but both result in additional unfortunate circumstances: loss of your custodial rights to your child. Intoxication assault involves driving while intoxicated and causing an accident that results in the serious bodily injury of another person. Intoxication manslaughter is the same but the other person dies as a result.

Both misdemeanor and felony DWI are strongly considered by judges against your favor unless your DWI misdemeanor conviction occurred many years ago. If you have currently been charged with a DWI, it is in your best interests as a parent to seek experienced legal representation.

Drug Possession

Substance abuse is taken very seriously by the courts when considering child custody, especially when illegal drugs are in question, like marijuana -- even though the latter is legal in some states. If you have a pending drug possession conviction or a recent conviction, then it will be harder for you to obtain or maintain joint custody. If your charge is pending, it is very important to retain a lawyer who is committed to fighting your charge, not plea bargaining, because the latter will still impact your custody rights.

Domestic Violence

The court will not grant joint conservatorship to you if you have been convicted of either (1) domestic violence with the other spouse and/or the child; and/or (2) sexual violence against any person, family or stranger. In most circumstances, you will likely be granted visitation rights, and depending on the nature and circumstances of your conviction, your visitation right may require supervision.

The same holds true here as it does with any other pending charge against you: seek legal representation by an attorney who has the experience, the insight, the resources, and the commitment to fight your charge, even if that requires going to trial. In fact, you want an attorney who has extensive trial experience, which is evident if they are Board-certified in a specialization.

Fighting a Charge & Maintaining Custody Rights

If your conviction of a crime carries a penalty of imprisonment, then that time away from your child can impact your relationship with the child, but in general terms, your conservatorship rights can be reclaimed upon release of prison unless circumstances demand otherwise, like the threat of violence or instability in the home. Your custodial rights are at the discretion of the court. Your goal, however, is not to get a conviction and, thus, not to go to jail or prison. Your goal is the dismissal or acquittal of the charge(s) against you, and that's what Doug Murphy intends to do.

When You Need an Aggressive Criminal Defense Lawyer…

When you need an aggressive criminal defense lawyer, it's because your rights and freedom are at stake. One such right is the right to parent your child. Don't let a DWI or other charge against you turn into a conviction and thereby affect your child custodial rights. Contact Doug Murphy. He's experienced. He's Board-certified in DWI defense and criminal defense. He is well-regarded in his field of law and travels throughout Texas and beyond to teach other attorneys how to defend their clients successfully, too. Contact Doug Murphy Law Firm today.

Contact Us Today

If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.

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