One would hope that one Dwi arrest would not change custody status. If the is an action the court will look at multiple factors before determining what is in the best interest of the children. He might want to consider enrolling in a substance abuse program. Good luck.
I have been a criminal attorney in New York for almost 25 years. website: Brooklynlaw.net Phone #: 718-208-6094 email: email@example.com. This answer is only for informational purposes and is not meant as legal advice.
It is possible, depending on whether the mother contests custody and many other factors that are considered by Family Court as what physical and legal arrangements "are in the best interests of a child". Losing custody is not automatic on a felony conviction and even incarceration, but can certainly be taken into account in a felony situation.
My advice is to first focus on the criminal law aspects of the DWI charges and get a good criminal lawyer who's versed in DWI offenses. I'd also seek out treatment options, perhaps participate in 12 step programs like AA, and perhaps look into an interlock device, but it's more probable that depending on the disposition of the criminal law matter, your brother will lose his driver's license automatically.
In other words, priortize: first defense of the DWI charges, second, professional treatment for alcohol abuse and third, looking into what the "fallout" of the first steps are on a child custody petition, if any. It may have a lot to do with the fitness and wishes of the non-custodial parent and whether the brother can be a good father without subjecting the kids to danger by needing to drive them around.
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No one factor is determinative, the totality of the circumstances and an examination into past history will dictate whether this will be viewed as an isolated occurrence that will be learned from or an act not in the best interests of the children.
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