I’m currently going through a divorce and a child custody battle with my wife. At this time I retained physical custody of our children and live in the home, because my wife has psychiatric issues. Over the last weekend while we were exchanging the children at a pre-designated location, my wife assaulted me in the parking lot and was arrested for domestic violence. This happened in front of the children and in front of several witnesses, which the police interviewed. This is happened before in the past, but this is the first time it happened in front of the children. On all previous occasions I had taken pictures of the bruising and documented what it happened. I don’t want the mother of my children to go to jail, so I’d like to drop the charges, but I would still like the Family Court judge to take her arrest into consideration. Will let her my custody case if I drop the domestic violence case against my ex-wife? If I drop the domestic violence case will this affect anything else in my divorce, such as child support?
ANSWER:
Technically, you are not actually able to drop charges such as these. Most people do not understand that the state, not the victim, decides if such a case moves forward or gets dropped. Many people feel that they have the right to simply drop criminal charges as they see fit, this is both against public policy and and not the best interest of the victim, regardless what they think. But if you refuse to testify, in many cases that will cause such a matter to be dropped, especially since you are married and have spousal privilege. The fact that there were other witnesses, means that your testimony really isn’t required in order to obtain a conviction against your ex-wife. With that being said, strategically I would not drop the charges and use them as leverage against your wife. A conviction in criminal court, would give you leverage in Family Court that you simply cannot buy. So it is in your best interest, not to drop the trip criminal charges, allow the courts to do their jobs and use the disposition of the court in the family court matter. In my opinion, it could only hurt your case to drop the charges, especially if the Family Court judge knows you have dropped them. There really isn’t any other way for the judge to look at it, other than the accusations you are making about your wife’s psychiatric conditions and violence are untrue. This certainly can affect your entire divorce proceedings, as child custody will be based on which parent is best suited to raise the children and a filing woman with psychiatric issues, is certainly not the best choice. Furthermore once you get child custody, then you can ask for child support. So any evidence used in court to obtain the desired result for your case, certainly has an effect on the outcome of your case.
Joseph F. Botelho, Esq.
BOTELHO LAW GROUP
Attorneys At Law
901 Eastern Ave.
Unit 2
Fall River, MA 02723
Office: 888-269-0688
Email: jbotelho@botelholawgroup.com
https://www.botelholawgroup.com/
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