When Family Law and Criminal Law Collide: What Arizona Families Need to Know
If you are going through a divorce or custody dispute in Arizona, and there is also a criminal case involved — whether it is a domestic violence charge, a DUI, or another criminal matter — you are navigating two separate legal systems at the same time. These two areas of law operate independently, but they can profoundly affect each other. Understanding how they interact is essential to protecting your rights and your relationship with your children.
Two Systems, One Family
Family law cases in Arizona — including divorce, legal separation, child custody, and orders of protection — are handled in the civil court system. Criminal cases, such as assault, domestic violence, DUI, or drug offenses, are prosecuted by the state in criminal court. Even though these cases are filed separately, what happens in one courtroom can directly shape the outcome in the other.
How a Criminal Record Can Affect Custody in Arizona
When an Arizona family court judge evaluates custody, the law requires consideration of the “best interests of the child.” Under Arizona Revised Statutes Section 25-403, the court reviews a broad range of factors — and a parent’s criminal history is one of them.
A single criminal charge does not automatically disqualify a parent from obtaining custody or parenting time. However, certain types of convictions carry significant weight. A history of domestic violence is treated particularly seriously under Arizona law. Under A.R.S. Section 25-403.03, if a court finds that domestic violence has occurred, there is a legal presumption that awarding sole or joint custody to the perpetrator is not in the child’s best interest. The burden then shifts to that parent to prove otherwise.
Other criminal matters — such as child abuse, sexual offenses, or substance-related offenses — can also have a significant impact on parenting time and decision-making authority. Even an arrest without a conviction may be raised in family court, as judges have broad discretion to consider any evidence relevant to the child’s safety and wellbeing.
Orders of Protection and Their Impact on Family Court
In Arizona, a victim of domestic violence can seek an Order of Protection through the family court. This is a civil remedy, not a criminal conviction. However, it can have immediate and far-reaching consequences for a parent’s access to their children.
An Order of Protection can restrict or completely prohibit contact between the restrained party and the protected person — which may include the children. If parenting time was already established, the order can temporarily override those arrangements. A family court judge will then need to balance the custody order with the protection order, which often requires a separate hearing.
Importantly, a false or exaggerated request for an Order of Protection can also have legal consequences. Arizona courts take these orders seriously, and misuse of the process may be considered by the family court when evaluating parental fitness and credibility.
DUI Charges and Parenting Rights
A DUI charge or conviction in Arizona can raise serious concerns in a custody case. If a parent is arrested for DUI while a child is in the vehicle, it may result in both criminal charges for child endangerment and immediate consequences in family court, including supervised visitation or suspension of parenting time.
Even a DUI that does not involve children can be used as evidence in a custody proceeding. The other parent may argue that substance use poses a risk to the children’s safety during parenting time. Courts may respond by ordering drug and alcohol testing, requiring completion of a treatment program as a condition of parenting time, or mandating that parenting time be supervised.
If you are facing DUI charges and are also involved in a custody dispute, it is critical that you address both matters strategically. What you say — or plead — in criminal court can directly affect the family court proceedings, and vice versa.
The Fifth Amendment Risk: Parallel Cases Are Not Separate
One of the most important — and often overlooked — challenges when criminal and family law cases overlap is the risk of self-incrimination. In a criminal case, you have the constitutional right to remain silent and not testify against yourself. But in a family court case, remaining silent or refusing to answer questions can be held against you when a judge assesses your credibility and parenting fitness.
This creates a genuine legal dilemma. If you testify openly in family court, your statements could potentially be used against you in the criminal case. If you invoke your Fifth Amendment right in family court, the judge may draw an adverse inference. Navigating this tension requires careful coordination between your criminal defense strategy and your family law case.
This is one of the most compelling reasons why having an attorney who understands both areas of law — or who can coordinate with a criminal defense attorney — is so important when the two systems intersect.
Timing Matters: The Sequence of Your Cases Can Change the Outcome
The order in which your cases proceed can significantly affect the outcome. For example, if a criminal matter resolves first — through dismissal, acquittal, or a favorable plea — that outcome can be used to strengthen your position in family court. Conversely, a criminal conviction before a custody hearing can be very damaging.
In some situations, it may be possible to request a stay — or pause — of one proceeding while the other plays out. Whether this is a viable strategy depends on the specific facts of your case, the timeline of both proceedings, and the judge’s discretion. An experienced attorney can help you evaluate this and other options.
How the Law Office of Adriana Orman Can Help
At the Law Office of Adriana Orman, we understand that life does not fit neatly into legal categories. When a criminal matter and a family dispute arise at the same time, the stakes are high on both fronts — your freedom, your finances, and your relationship with your children.
Adriana Orman is an Arizona attorney who practices family law and criminal defense. She is attuned to the ways criminal proceedings can affect family court outcomes and she works closely with clients to develop a thoughtful legal strategy that accounts for all of the moving pieces — so that decisions made in one case do not inadvertently harm the other.
If you are navigating overlapping family law and criminal law issues in Arizona, do not wait to get guidance. Contact our office today to schedule a consultation and take the first step toward protecting what matters most.