“My ex and I have 4 daughter’s together. We have joint custody, although I have physical custody of two of our daughter’s and my ex has physical custody of our other two daughter’s. I have just recently discovered that my ex and his wife, have both been indicted on four Federal felony charges of which if found guilty on all four counts, they could each land themselves in prison for up to 55 years and/or a $750,000.00 fine! I won’t know the outcome of this until mid December. What I need to know is, #1) Would this indictment alone be enough for a change in circumstance? #2) If my ex is sentenced to prison time, will it be automatic for me to get custody back of our two daughter’s that my ex has physical custody of? #3) Is there anything legally that I need to do before the outcome of the hearing to insure that I can walk away with the girls immediately if my ex is sentenced to prison? I don’t have a lot of extra income so really cannot afford an attorney right now. I am hoping that anything that needs to happen, can be taken care of by me, with me not having to go through an attorney.”

The indictment itself is probably not enough to warrant a change in custody without other facts to support that change. If your ex-husband is setenced to go to prison, then he would no longer be in position to perform custodial duties. It may be a good idea to enter into a stipulation with your ex- that if either of you were sentenced to prison then the other parent shall assume custody of the children until such a time that the parent is released from custody. If he does not agree, it wold probably be a good idea to get a case going asking for that particular relief. A judge might even grant such a custodial conviction contingency order on an emergency basis.

If you do not act or come to an agreement prior to your ex- being locked up, when the Court does get to the point of having to make a decision you would seemingly be in the best position for custody. In California, Family Code section 3040 provides: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

So first try to get an agreement about “if prison, then custody arrangement.” If that does not work, the Court needs to know what is going if you want to avoid the possibility of a foster care situation, even if it is likely only temporary.

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Michael Durgavich is an accomplished attorney and mediator. Maintaining a general practice in the San Jose, California area, Mr. Durgavich specializes in family law, bankruptcy, and alternative dispute resolution. Mr. Durgavich can be reached through his website at http://www.MichaelDurgavich.com. Contact This Author

State laws vary, and the above is intended as general advice, and not direct legal advice regarding any one particular situation in any one state. For direct personal legal advice related to your own situation you should consult an attorney familiar with the laws of your state and with your situation.