Your Custody Case While a Domestic Violence Charge Is Still Pending: What Happens Before Conviction
If you’re facing a Bexar County Assault & Domestic Violence charge and you also have an active child custody case — whether through an ongoing divorce or a separate SAPCR — you’re dealing with two serious legal proceedings at once, and what happens in one can genuinely affect the other before either case is finished. Nothing has been proven yet in your criminal case, but that doesn’t mean your custody case simply waits on the sidelines until it is.
A Pending Charge Can Matter at a Temporary Orders Hearing — Even Before Any Conviction
Here’s the part that surprises a lot of people: Texas Family Code Section 153.004 does not require a criminal conviction for an allegation of family violence to be relevant to your custody case. The statute directs the family court to consider evidence of the intentional use of abusive physical force committed within the two years before the custody suit was filed, or during the pendency of the suit itself — meaning while your case is actively ongoing, right now.
This means a family court can look directly at the underlying conduct behind your pending criminal charge, evaluated under the civil “preponderance of the evidence” standard — a lower bar than the “beyond a reasonable doubt” standard your criminal case requires — entirely independent of whether that criminal case has resulted in a conviction, is still pending, or is eventually dismissed. The two proceedings run on separate tracks, with separate standards, and a family court doesn’t have to wait for your criminal case to conclude before weighing in on custody.
You Still Have the Presumption of Innocence
It’s important to hold onto this clearly: you remain innocent until proven guilty in your criminal case, and a pending charge alone does not automatically mean you’ll lose custody, visitation, or access to your children. Depending on the specific facts, many parents facing pending charges continue to have meaningful access to their children while their case works through the courts. A pending accusation is a serious matter to address carefully — but it is not, by itself, a foregone conclusion.
The Real Tension: Testifying in Family Court While a Criminal Case Is Open
This is the single most important thing to understand if you’re navigating both cases at once, and it’s a genuine dilemma without an easy answer.
In your family court proceedings — including a temporary orders hearing — you generally can be called to testify, and you can invoke your Fifth Amendment right against self-incrimination to avoid answering questions that could be used against you in your separate, pending criminal case. That protection is real and available to you.
But here’s the tension: unlike in a criminal trial, a family court judge is generally permitted to draw an adverse inference from your silence in this civil proceeding. In plain terms, asserting your Fifth Amendment right to protect your criminal case can be held against you in your custody case — a judge may reasonably conclude you’re avoiding the question because the answer would hurt you. At the same time, testifying freely in family court to help your custody position can create real, serious risk in your criminal case, since anything you say can potentially be used against you there.
This is exactly the kind of problem that can’t be solved by thinking about either case in isolation. It requires a coordinated strategy — knowing precisely what can be said, what shouldn’t be said, and when asserting the privilege is worth the custody-case cost — developed with both your San Antonio criminal defense attorney and your family law attorney working from the same information, together, rather than each working blind to what’s happening in the other case.
Why Working With One Coordinated Legal Team Matters Here
If your criminal attorney and your family attorney aren’t talking to each other, you’re the one absorbing that gap — potentially making a statement in a custody hearing that damages your criminal defense, or making a decision in your criminal case without understanding its custody consequences. A coordinated approach means your legal team can plan your testimony strategy, your plea timing, and your custody presentation with the full picture in view, rather than solving one problem and inadvertently creating another.
What This Means for Your Bexar County Situation
If you’re facing both a pending domestic violence charge and an active custody matter, the most important early step is making sure both sides of your legal team have the complete picture — the specific charge, the specific custody posture, and the timeline of both cases — before any major decision gets made in either one. A decision about your criminal case that looks reasonable in isolation, or a custody strategy built without your criminal exposure in mind, can each create real problems in the other.
Frequently Asked Questions
Q: Can I lose custody just because I was arrested, before any conviction?
A: Not automatically. You retain the presumption of innocence, and a pending charge alone doesn’t guarantee any particular custody outcome. That said, Texas law does allow a family court to consider the underlying conduct behind a pending charge at a temporary orders hearing, evaluated under a civil evidence standard, independent of your criminal case’s status.
Q: Does the family court have to wait until my criminal case is over to decide custody issues?
A: No. Texas Family Code Section 153.004 specifically allows the court to consider relevant conduct occurring during the pendency of the custody suit, not just conduct that’s already been proven in a separate proceeding.
Q: Can I be forced to testify about my case in family court while my criminal case is still pending?
A: You can generally be called to testify, but you can invoke your Fifth Amendment right against self-incrimination to avoid answering specific questions that could be used against you in your criminal case.
Q: If I plead the Fifth in my custody case, will that hurt me?
A: It can. Unlike in a criminal trial, a family court judge is generally allowed to draw an adverse inference from your silence in this civil context. This creates a genuine strategic tension that’s worth working through carefully with your attorneys before any hearing.
Q: Do I need separate attorneys for my criminal case and my custody case, or can they work together?
A: You’ll generally need attorneys with expertise in each area, but it’s important that they coordinate directly with each other, since decisions in one case can meaningfully affect the other. Ask whether your legal team is actively communicating across both matters.
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Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000
Division: Criminal Defense San Antonio
Practice Area: Misdemeanors
Focus Area: Assault & Domestic Violence
