Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- Driving drunk with a child 15 or younger is a Class E felony, even on a first offense.
- The arrest triggers an automatic report to Child Protective Services.
- A conviction does not change your custody order. You have to petition.
- You do not have to wait for the criminal case to end.
When a divorced parent gets a DUI, the other parent will often seek custody of the child, as they believe this is the best way to keep the child safe. Read on and reach out to an experienced Long Island child custody lawyer from Barrows Levy PLLC today to learn more about these cases, how a DUI can impact custody, and how our legal team can assist you.
Will a Court Consider a DUI When Determining a Child Custody Agreement?
Courts consider several factors when deciding on a child custody agreement, though the most important factor is a child’s best interests. If a court determines that one parent is incapable of acting in their child’s best interests, or that it would be in a child’s best interests for one spouse to have primary or sole custody of a child, the court will create a custody agreement that reflects this.
That being said, when it comes to a DUI impacting a child custody agreement, the circumstances surrounding the DUI are important. For example, if a parent seeking custody received a DUI 15 years ago, it most likely won’t have a significant impact on the custody agreement, especially if they can prove that they’ve consistently acted in their child’s best interests over the years. That said, a repeat DUI offender or someone who drove while under the influence with a child in the car should be a bit more concerned about their parental rights.
Are DUIs With Children in the Car Punished More Harshly in NYS?
When someone is caught driving while under the influence of drugs or alcohol, they will face a wide array of criminal penalties. Where a passenger aged 15 or younger is in the vehicle, the consequences go considerably further than an ordinary charge.
This Is a Felony in Its Own Right
In accordance with Leandra’s Law, formerly referred to as the Child Passenger Protection Act, driving while intoxicated or impaired by drugs with a child aged 15 years or younger in the vehicle is a Class E felony under Vehicle and Traffic Law § 1192(2-a)(b). This is applicable on a first offense, regardless of the driver’s prior driving history.
A conviction carries a maximum sentence of four years in state prison and fines ranging between $1,000 and $5,000.
Several other consequences attach:
- The driver’s license is suspended automatically while the case is pending, before any conviction.
- An ignition interlock device must be installed on every vehicle they own or operate.
- Where the death of a child passenger results, the charge rises to a Class B felony carrying up to 25 years.
Before the law took effect in 2009, prosecutors generally charged misdemeanor DWI in conjunction with an endangering the welfare of a child. While those charges remain available, the standalone felony charged now is more serious and will be what the family court considers.
Child Protective Services May Already Be Involved
Parents are unaware that, when the driver is the child’s parent, guardian, or otherwise legally responsible for them, the arresting officer is legally required to report the incident to the Statewide Central Register of Child Abuse and Maltreatment. That report will result in an investigation conducted by Child Protective Services.
That will proceed independently of the criminal case. It means you may not be the only party examining this, and it means there may already be a record your attorney can obtain.
What Should I Do Now?
Since courts consider the best interest of the child as the most important custody factor, there is a strong chance they’ll modify a custody agreement to limit that parent’s say in raising the child. Rather obviously, driving while intoxicated is reckless, to say the least, and doing so, especially with a minor in the vehicle, calls a person’s parental fitness into question.
A conviction does not result in an automatic custody order by itself. If the offense occurred after the order was entered, you will need to seek a post-judgment modification, and you would need to demonstrate that a substantial change in circumstances occurred. Additionally, you will need to show that the changes reflect the best interests of your child. A felony arrest involving your child can serve as powerful evidence, but it does not function as an automatic result.
You also do not have to wait for the criminal case to conclude. Those proceedings can take months, and parents with immediate safety concerns may seek temporary orders in the meantime. Ultimately, the conduct and arrests are facts the family court may weigh now, regardless of what happens on the criminal side.
If you are looking to keep your child safe, our firm is here to help. All you need to do is pick up the phone and give our Long Island family law attorney a call.
Contact Our Experienced Nassau County Firm
Barrows Levy PLLC is a dedicated New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you require a lawyer who has notable experience handling family and estate planning matters, contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
