A Partner's DWI and Marijuana Use in a New York Custody Case

Attorney Answer

Yes, they can raise it — in a custody case a live-in partner's conduct is fair game to the extent it touches your child — but how that firm came to know about the DWI is a separate and serious problem.

N.Y. Domestic Relations Law § 240(1)(a) requires custody and visitation to be determined as justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child. The statute does not list the factors — those come from case law — but the shape of it answers your first question. There is no rule that keeps evidence about the adults in your household out. The question a court asks is whether the conduct affects the child's care and safety, not whether it sounds bad in a conference room.

So two points cut against you, and one cuts for you.

Against you: adult marijuana use is lawful in New York, but lawful conduct can still be weighed under § 240(1)(a) if it affects supervision, driving with your child, or the household. And a DWI conviction is a matter of public record — a firm does not need any confidential information to find one, so the mere fact that it was mentioned does not by itself prove misuse of client information.

For you: if that firm represented your significant other in the DWI, it owes him continuing duties as a former client, confidentiality among them. A firm using what it learned while representing him against him, or against your household, in a later matter is a real ethical problem. The person with standing to raise it is him — through a motion to disqualify the firm, or a grievance to the attorney grievance committee for that department. It is his call, not yours.

What you can do

1. Write down today exactly what was said at the attorney conference, by whom, when, and who else was present. Contemporaneous notes are worth far more later than a recollection. 2. Tell your significant other. He is the former client, and the decision whether to raise the conflict belongs to him. 3. Ask your attorney to put the disclosure on the record and to advise whether a disqualification motion is warranted here. 4. Prepare for the substance separately. Section 240(1)(a) is about your child: be ready to show who drives your child, what your household routine is, how the DWI was resolved and what your partner has done since. 5. Resist the urge to answer in kind by digging into your spouse's record. A custody court is measuring parenting, not keeping score.