Influence of a Gun Case on Child Custody in New Jersey
Child Custody Rights when Facing Weapons Charges in NJ
Guns and weapons crimes in New Jersey can be severe with lasting consequences. One possible consequence is related to child custody. Depending on the precise charge, the outcome (were you convicted or was the charge reduced or dropped?), and how long ago it occurred, guns and weapons crimes can potentially be relevant information affecting court decisions determining child custody. If you are facing a gun charge in the midst of a custody battle or having your custody challenged based on a pending weapons crime case in New Jersey, speak with an attorney on our criminal defense team to learn more about how these charges can affect your case and what you can do to improve your chances of getting or retaining custody. Contact us at (201)-614-2474 for a free consultation about your custody rights when facing weapons charges. Our experienced New Jersey weapons defense attorneys help clients in Middletown, Point Pleasant, Brick, Lodi, Lyndhurst, Paramus, Parsippany, Clifton, Woodbridge, South Brunswick. Livingston, and across New Jersey to keep gun charges off their criminal records and otherwise mitigate the damage of a weapons crime allegation.
The Complex Relationship Between Gun Charges and Custody Decisions under NJ Law
Gun or weapons charges can impact child custody decisions, but there are many factors that are considered in addition to the charges themselves. These additional factors mean that it is possible for a gun or weapons charge to cost a parent custody or to have no impact on custody at all. It is also possible for the charge to result in limitations on the parent’s custody. The parent may also be denied custody but granted visitation rights, either supervised or unsupervised.
Guns and weapons charges are like many other crimes, with a spectrum of severity that provides different potential penalties. Like many other crimes, this spectrum also determines how egregious the gun and weapons charge may appear in the eyes of the law. The most common gun and weapon charges in New Jersey are second degree offenses, including unlawful possession of a firearm and possession of a firearm for an unlawful purpose. The penalties for these offenses can include five to ten years in prison and up to $150,000 in fines.
While second degree offenses are the most common, they are not the most egregious. The most egregious gun and weapons charges in New Jersey are first degree gun and weapons charges, which are typically crimes committed with a gun, such as murder, armed robbery, or kidnapping. These offenses face penalties of 10 to 20 years in prison and fines of up to $200,000.
After first and second degree charges, there are third and fourth-degree weapons charges. Third degree charges include guns such as airsoft and BB guns, and can face penalties of up to $15,000 in fines and three to five years in prison, though first-time offenders are rarely incarcerated. Fourth degree charges include possession of a prohibited weapon or device, and face fines of up to 18 months in jail and fines of up to $10,000. These charges are on the lower end of the spectrum and considered minor in contrast to first and second degree charges. However, it is important to remember that any weapons charge, particularly when the individual is convicted, can potentially impact custody matters.
How Current and Past Weapons Crimes Affect Custody Rights Differently in New Jersey
The timing of any criminal charge, especially those including firearms or other weapons, is a significant factor in custody decisions. If an individual has a gun charge that is in their past, particularly if it is 10 or 20 years in their past, this charge is far less likely to impact a custody decision. However, if an individual is in the middle of a custody battle when they receive a weapons charge, or if their spouse or former spouse files for custody soon after the individual receives a weapons charge, this is far more likely to have an impact on custody.
Depending on the precise nature of the charge, such as if it is a domestic violence charge or the gun was used or brandished in the presence of the individual’s child, the other parent may be granted temporary custody until the individual is cleared, convicted, or has a plea agreement in place and further decisions can be made. Once an individual is convicted or agrees to a plea agreement, temporary custody will then become permanent custody with the decisions made based on the individual’s sentence. An individual sentenced to jail or prison time will not get custody, but may be granted visitation rights even while incarcerated.
Balancing Parental Rights and Weapons Charges in NJ Custody Cases
A parent cannot lose their parental rights, custody or visitation rights merely because they have been charged with a weapons offense. Until a decision is made in their criminal trial, their rights will not likely be affected solely because of the charge. However, the charge itself potentially endangers the child or the individual is incarcerated while awaiting trial, in which case the parent may be at risk of losing custody rights, and having their visitation rights limited.
If the parent’s charge is considered to potentially endanger the child, such as a domestic violence charge involving a gun, the child being present when the crime involving the gun is committed, or the crime was committed against the child, the court may take away the parent’s custody and/or visitation rights while the parent is awaiting trial. The court must consider the child’s best interests, and typically, the court views those situations as not being in the child’s best interests. Additionally, it is very likely that the child’s other parent will file for a change in custody and visitation immediately upon learning of the individual’s arrest and the charges against them, and will inform the court that the pending charges are the reason for the requested modifications.
Pretrial Detention and Child Custody Consequences in NJ Weapons Cases
New Jersey is one of the most restrictive states for gun laws. Depending on the source, the state ranges from second toughest to seventh toughest gun laws. This leads to the state having one of the lowest rates of firearms death in the country. However, it also means the state has a particularly strict gun law, the Graves Act. The Graves Act mandates that individuals facing certain firearms offenses must serve minimum prison sentences. This can lead to offenders being detained, or incarcerated, while awaiting trial. This means they can be held in jail until their trial, often because the prosecution argues that they are a danger to the community. This does not happen with every firearms offense, but it is common for offenses involving illegal weapons or charges where the firearm was used to carry out additional crimes.
When an individual is detained in this way, the clock begins ticking on their right to a speedy trial, which should take place within 180 days. However, the individual is also entitled to legal counsel to help build a defense, the right to present evidence, confront witnesses, and an unbiased jury. Both the prosecution and the defense need time to gather evidence, find and prepare witnesses, and select the jury. This means that it may take longer than 180 days to begin the trial. Then the individual will remain incarcerated during the trial, which may take only a few days or could take weeks, depending on the exact nature of the charges.
If a parent faces pretrial detention after being arrested for a gun or another weapons-related criminal offense in New Jersey, this can significantly influence custody of their children. Incarcerated individuals cannot have custody of their children. While they could potentially have another relative care for their children while they are awaiting trial, such as a grandparent, aunt, or uncle, this may not be a stable environment for a child. They may be bounced from relative to relative as these family members may not have been prepared to care for the child. It is also unlikely that the court would agree to such a situation if the child’s other parent is willing and capable of providing a stable home for the child. Once the other parent has had custody of the child for potentially several months, the court may be reluctant to modify custody again simply because the individual was not convicted of the charges.
The High Stakes of Weapons Charges for Parents and Their Families in NJ
While a parent may lose custody of their child if they are incarcerated while awaiting trial, there is always a possibility they will get custody back if the charges are dropped or they are found not guilty in their trial. A knowledgeable attorney can assist the parent in arguing that because they were not convicted, they are not a danger to their child and are a fit parent. However, once convicted of a weapons charge, parents face an uphill battle to regain custody. There are several reasons for this. First, the various penalties for weapons charges mean that parents may be in prison for a year and a half to 20 years. Even a year and a half is a long time, particularly when a child’s best interests are typically met with a stable home and routine. Therefore, a parent who is incarcerated as part of their conviction have a significantly lower chance of getting custody once they are released.
Beyond that, the firearms offense the parent is facing will also make an enormous difference in attempting to regain custody after a conviction. If the parent is convicted of a firearm offense in connection with a sexual assault, they are barred from ever having custody or visitation rights with any minor child. Violence that indicates the parent may be a threat to their child, such as domestic violence or committing an offense with a firearm while the child is present, can also result in the parent losing the right to have custody of their child and may require visitation to be supervised.
Therefore, it is critical that a parent charged with a firearms offense seek legal representation and build a solid defense against the charges against them. These convictions can wreak havoc with custody and visitation, potentially even destroying a parent’s relationship with their children if they are convicted and sentenced to several years in prison.
What Happens if You are a Parent Given an Extreme Risk Protective Order in NJ?
The Extreme Risk Protective Order (ERPO) Act was passed in 2018 and is intended to address circumstances where an individual may be a danger to themselves or someone else. There are temporary and permanent ERPOs. A temporary ERPO is effective for up to 10 days while a permanent one is effective for one year. A permanent ERPO revokes the individual’s firearms identification card and requires them to surrender all firearms and ammunition, while also permanently preventing them from applying for a new firearms identification card. Family or household members or law enforcement officers can apply for an ERPO and the court will consider several factors, including prior arrests, history of violence, drug or alcohol use, and threats. ERPOs are meant to address a situation in which an individual is a danger to themselves or someone else. This means that having an ERPO issued against them can influence the custody case in different ways, depending on why the ERPO is issued and the outcome of the final ERPO hearing.
ERPOs and Custody Outcomes in New Jersey Courts
If the ERPO is issued because the individual is a danger to others, it creates a rebuttable presumption that the other parent should have custody of the child. This means that the parent against whom the ERPO was issued will need to present evidence indicating that they are mentally stable and no longer a danger to others. It is important to note that if the ERPO was issued because the individual was considered to be a danger to their child, the child’s other parent, or another close relative, it may be much more difficult to overcome this presumption and regain custody or unsupervised visitation rights. Lastly, if the temporary ERPO was subsequently dismissed, this creates a much higher likelihood of a positive outcome for the parent when it comes to custody of their children.
Don’t Jeopardize Your Parental Rights Due to a Weapons Case in NJ, Contact a Skilled Defense Attorney Today
Even the most minor gun and weapons charges are significant, as are domestic violence weapons forfeiture matters, and extreme risk protective orders, all of which could spell negative implications for your custody and visitation rights in New Jersey. A conviction has the potential to damage or even destroy your relationship with your children because if you are incarcerated, the other parent may not be required to bring the child to visit you at the prison. A solid defense is a critical part of avoiding a conviction, and hiring a weapons defense attorney is the first step to that.
At The Tormey Law Firm, our seasoned weapons lawyers understand and frequently navigate these types of charges. Our experience allows us to assist you in collecting evidence, challenging and discrediting witnesses for the prosecution, finding character witnesses to testify on your behalf, and other steps that can help build a strong defense that may allow you to avoid conviction. We may also be able to assist in negotiating with the prosecution for reduced charges or other plea agreements. You should not rely on your own abilities to avoid a firearms conviction. When custody of your children is on the line, you should rely on a skilled attorney to help you; if you’re facing weapon possession charges and fighting for child custody in Little Falls, Elizabeth, Cranford, Somerville, Bridgewater, Westfield, Green Brook, Newark, or elsewhere in New Jersey, we’re here for you. Call (201)-614-2474 to speak with a member of our team in a free consultation and learn more about your rights.