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Divorce During Federal Child Pornography Case – Custody Rights
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Your marriage is ending. Federal charges are pending. And your children are caught in the middle of both. The divorce that might have been difficult under normal circumstances becomes nearly impossible when federal child pornography charges are involved. Because your spouse will file for custody. And they will win. At least temporarily. Maybe permanently. The question isn’t whether you’ll lose custody. It’s what custody you can realistically fight for.
This is the two-front war that defendants facing federal charges rarely understand until they’re living it. The federal case is terrifying – years in prison, mandatory minimums, lifetime sex offender registration. But the family court case running alongside it may determine something equally devastating: whether you’ll have any relationship with your children after this is over. And the two cases don’t operate independently. What you do in one affects the other.
Welcome to Spodek Law Group. Our goal is to give you real information about how divorce and custody proceedings intersect with federal child pornography charges – the realities you’ll face, the mistakes that destroy custody chances, and the strategies that protect what can be protected. Todd Spodek has represented clients navigating both federal criminal proceedings and simultaneous divorce battles. This article explains what you need to know.
The Two-Front War
Heres the paradox that destroys defendants who dont understand it. In federal court, you’re presumed innocent until proven guilty beyond a reasonable doubt. In family court, the standard is “best interest of the child.” That standard doesn’t require proof of guilt. It requires the judge to assess risk. And a pending child pornography indictment is all the risk assessment they need.
The family court judge has already seen the federal indictment. They know what your charged with. They know the allegations. And they’re not going to wait for the federal trial to make custody decisions. They’ll make temporary orders immediately. They’ll restrict your access to your children now. They’ll give your spouse emergency custody based on charges alone.
This means you’re fighting two cases simultaneously with different standards, different judges, different attorneys, and different strategies. Your federal criminal defense attorney cant represent you in family court – conflicts of interest, different areas of law. You need separate counsel. And those two attorneys need to coordinate, becuase what you say in one proceeding can be used in the other.
At Spodek Law Group, we help clients understand that the family court case is not secondary to the criminal case. Its happening at the same time. Decisions are being made while your presumed innocent federally. And those decisions can become permanent even if the federal case ends in acquittal.
Theres a strategic calculation that affects everything. Fighting aggressively for custody may require statements or positions that damage your federal defense. Focusing entirely on the federal case may mean conceding custody. You cant optimize for both simultaneously. Trade-offs are unavoidable. The question is which trade-offs you can live with.
What Your Spouse Will Do
Heres the uncomfortable truth about what happens next. Your spouse will file for divorce – if they havent already. They will file for emergency custody. And they will get it. No family court judge grants custody to a parent facing federal child pornography charges. That’s not bias. That’s every judges reasonable assessment of risk under the best interest standard.
The emergency custody motion writes itself. Spouse is charged with federal child pornography offenses. Children require protection. Grant immediate full custody to the non-charged parent. The motion gets filed. The hearing happens quickly. Your spouse walks out with temporary full custody. This happens whether your guilty or not. This happens before any trial occurs.
If your detained pending trial – and in federal CP cases, theres a presumption of detention – your spouse files the divorce paperwork while your in custody. You may not even be able to respond effectively. You’re sitting in a federal detention facility while your marriage ends and custody is decided without you present. The irony is brutal. Your spouse gets to end the marriage at the moment your least able to participate.
Todd Spodek helps clients understand that the custody fight starts the day of arrest. You need a family law attorney immediately – separate from your criminal defense attorney. The emergency custody hearing may happen within days. If you’re not represented, the outcome is worse. Even with representation, the outcome favors your spouse. But having counsel means fighting for whatever you can get.
Theres another layer that complicates the divorce. Your spouse may have known about your activity. They may have used the same devices. They may have ignored warning signs. If CPS is involved, both parents may face scrutiny. The spouse who reported you to protect themselves may find their own parenting questioned. “What did you know and when did you know it” applies to both of you.
How Bail Conditions Control Family Access
Heres the hidden connection that separates defendants from their children before any custody determination. Federal bail conditions in child pornography cases almost always include: no contact with minors. “Minors” includes your own children. The federal magistrate’s standard bail condition takes away your family access before the family court even rules.
So you make bail. Your released. Your spouse files for divorce. But you cant see your kids anyway becuase of the bail conditions. The family court didn’t have to restrict your access – the federal court already did. Your spouse has complete control of the children. You cant be present for school events. You cant be there for medical decisions. You cant contest anything in real time.
This creates a situation where custody is effectively decided by the criminal case before family court acts. When family court does hold a hearing, you’ve already been separated from your children for weeks or months. The children have adjusted to life without you. The status quo has shifted. And family courts tend to maintain status quo when they see children are stable.
At Spodek Law Group, we work with criminal defense attorneys to seek modifications to overly restrictive bail conditions. Sometimes supervised contact with your own children can be arranged. But the default is complete prohibition. Overcoming that default requires demonstrating that contact is safe – difficult when the charges involve child exploitation, even if the images were never of your children.
Theres a legal theory in some jurisdictions that makes this worse. Some case law holds that downloading child pornography constitutes “per se child abuse” toward your own children – even if the images had nothing to do with them. The theory is that exposing children to a household where this material was present creates harm by itself. This theory converts your federal charge into an automatic finding of abuse against your own children. And abuse findings affect custody permanently.
The Discovery Trap
Heres the consequence cascade that catches defendants who don’t understand how the cases intersect. Family court has discovery. Depositions. Document requests. Financial interrogatories. And unlike criminal court, there’s no Fifth Amendment protection that works the same way. You can invoke the Fifth in family court, but the judge can draw negative inferences from your refusal to answer.
Your spouse’s attorney will ask about the federal charges. About your computer use. About what you knew and when. About everything related to the allegations. If you answer, those statements can be obtained by federal prosecutors. If you refuse to answer, the family court judge assumes the worst. There is no good option. Only less bad options.
This is the trap that destroys defendants. You want to defend yourself in the divorce. You want to explain that the charges are overblown, or that there’s context, or that you’re innocent. But every word you say in family court is discoverable in federal court. Your explanation becomes evidence. Your defense becomes prosecution material.
Todd Spodek advises clients to coordinate closely between criminal and family attorneys. What you say in the divorce matters for the criminal case. What you dont say in the divorce matters for custody. The attorneys have to work together to navigate these impossible choices. Going alone into either proceeding is catastrophic.
Theres also the financial discovery that affects both cases. The divorce requires disclosure of assets. That disclosure may reveal things that the federal case also cares about – how you paid for things, what accounts you have, what you spent money on. Financial transparency in divorce can become financial evidence in the criminal case. Everything is connected.
Protecting Assets While Everything Falls Apart
Heres the financial reality that compounds every other problem. The divorce will divide assets. The federal case may result in forfeiture. Legal fees are mounting on both fronts. And you may be detained, unable to work, watching your financial situation collapse while your spouse controls the bank accounts.
Federal forfeiture can reach assets connected to criminal activity. Computers and devices are obvious targets. But the family home, if it contained the devices used in the offense, could theoretically be subject to forfeiture. The innocent spouse defense exists – your wife can claim she had no knowledge – but while that claim is being litigated, assets may be frozen.
Meanwhile, the divorce proceeding wants to divide everything. Your spouse wants their share. The government wants forfeiture. The criminal defense needs retainer fees. The family lawyer needs retainer fees. Everyone has a claim on assets that may already be frozen or depleted. The financial pressure is overwhelming.
At Spodek Law Group, we help clients understand the intersection of forfeiture and divorce. What can be protected? What will be seized? How do you ensure your spouse gets their legitimate share without assets being forfeited first? These questions require coordination between criminal defense, family law, and sometimes a forfeiture specialist.
Theres a timing element that matters. If divorce is finalized before forfeiture proceedings conclude, your spouse may take assets that the government later claims. If forfeiture happens first, the divorce has fewer assets to divide. The sequencing of proceedings affects who ends up with what. Strategy matters.
Fighting For What’s Realistic
Heres the inversion that matters more then anything else. The question isnt “will I keep custody.” You wont. At least not full custody. At least not during the pendency of the federal case. The question is “whats the maximum custody I can realistically fight for given the circumstances.”
For most defendants facing federal CP charges, the realistic outcome during the pretrial period is supervised visitation – if that. You see your children with a third party present. A professional supervisor. An approved family member. Someone who can attest that the visits are appropriate. This isnt the relationship you want. But its contact. Its maintaining connection.
Supervised visitation can expand over time if you demonstrate compliance. If the visits go well. If the supervisor reports positively. If you complete whatever treatment or evaluation the court orders. The path from supervised visitation to unsupervised contact exists – but it requires patience, compliance, and time.
At Spodek Law Group, we help clients set realistic expectations. The initial custody order will favor your spouse overwhelmingly. Fighting for more than supervised visitation in the immediate term usually fails. But accepting supervised visitation gracefully, demonstrating compliance, and building a record of safe contact – that’s the foundation for eventually expanding access.
Theres also the psychological evaluation that courts typically order. Before any visitation, you may need to complete an evaluation with a mental health professional who specializes in sexual behavior. The evaluation assesses risk. The evaluator’s recommendation affects what visitation you get. Taking the evaluation seriously, engaging honestly (but carefully), and demonstrating insight – all of that affects outcomes.
Your Children Through This
Heres the reality that haunts every parent facing these charges. Your children are going to know something terrible is happening. They may not understand what the charges mean. But they understand that daddy was arrested. They understand that there’s a divorce. They understand that everything is different now.
The trauma isnt just the divorce. Its the separation. Its the supervised visits where someone else watches. Its the questions they cant ask becuase nobody will give them straight answers. Its the whispers at school when other parents find out. Your children are collateral damage in a situation they had no part in creating.
The irony is painful. The divorce you hoped would protect your children from the fallout may traumatize them further. The custody battle that you’re fighting “for them” may hurt them more. Sometimes the kindest thing for children is to stop fighting – to accept an outcome that minimizes conflict and gives them stability, even if it means less access for you.
Todd Spodek has seen families navigate these impossible situations. Sometimes the best outcome for children is a quiet agreement rather than a contested battle. Sometimes accepting your spouse’s custody terms – temporarily – is better for your children then forcing them through evaluations and hearings. The calculus isnt just about your rights. Its about what your children can survive.
Theres another aspect that extends beyond the divorce itself. How you handle this period shapes your long-term relationship with your children. If you fight bitterly, if you put them in the middle, if you make them feel responsible for the conflict – they remember that. If you accept restrictions gracefully while maintaining whatever contact you can, if you protect them from the worst of the proceedings – they remember that too.
After Conviction – What Remains
Heres the uncomfortable truth about the long-term. If your convicted, sex offender registration follows. That registration may permanently prevent you from living with minor children – including your own. Residency restrictions may prohibit you from living within certain distances of schools, parks, or places where children gather. Your children go to school. They play in parks. The math dosent work.
And even if your acquitted federally, the family court case may already be decided. Family court made its determination based on its standard. They assessed risk and ruled accordingly. Federal acquittal dosent automatically restore custody. You’d have to petition the family court to modify the order, demonstrating changed circumstances. That process takes years.
The path back to your children after conviction is narrow but it exists. Some parents maintain relationships through supervised visitation for years. Some eventually get restrictions lifted as children grow older, as treatment programs are completed, as the risk assessment changes. But its a long road. And it requires patience that seems impossible when your children are growing up without you.
Your children will also change during this time. They’ll grow older. They’ll understand more about what happened. They’ll form their own opinions about you, about the charges, about why you weren’t there. Some children maintain loyalty to their parent despite everything. Some children distance themselves. You cant control which path your children take. You can only control how you show up during whatever contact you have.
At Spodek Law Group, we’ve worked with clients who rebuilt relationships with their children after serving federal sentences. Its possible. But it requires realistic expectations about timelines, genuine commitment to treatment and compliance, and a focus on the children’s needs rather than your rights. The parent-child relationship can survive this. But it has to be nurtured carefully through years of restricted access.
Theres also the question of what your children will know about you. Court records are public. Sex offender registration is searchable. At some point, your children will have full access to information about your case. How you prepare them for that – how you’ve discussed it over the years, how you’ve taken responsibility, how you’ve demonstrated change – affects wheather that knowledge destroys your relationship or becomes part of a larger story of accountability and redemption.
Call us at 212-300-5196. The consultation is free and completly confidential. If your facing federal child pornography charges and dealing with divorce or custody issues, you need attorneys who understand both systems. At Spodek Law Group, we help clients navigate the intersection of federal criminal defense and family law. The cases are connected. The strategies have to be too.
The federal case may take years. The divorce may resolve faster. The custody determination may become permanent before you ever get to trial. What happens now – in the next weeks and months – shapes your relationship with your children for the rest of your life. Dont assume the criminal defense attorney handles everything. Dont ignore the family court while focusing on the federal case. Both fronts require attention. Both fronts determine your future.
The marriage is ending. The criminal case is pending. Your children are watching. How you handle this chapter – with grace or bitterness, with realism or denial, with focus on them or focus on yourself – will echo through your relationship with them for decades. At Spodek Law Group, we help clients navigate both cases while keeping perspective on what actually matters: the children caught in the middle of a situation they never chose.