In a custody case, when one parent has a felony conviction, it may raise additional concern and complexity. You should be aware that there are two types of custody; “legal custody” and “physical custody.”
Legal custody refers to a parent’s right to participate in the decision-making process regarding a child’s upbringing and welfare on subjects such as education, religion, and non-emergency medical issues. Whether a child will attend a public or private school is a common example.
“Physical custody” refers to where the child is going to live.
Legal custody and physical custody can be further broken down into “joint custody” and “sole custody.”
With “joint legal custody,” both parents share in making decisions regarding the significant aspects of a child’s life.
“Sole legal custody” means only one parent gets to make those decisions.
In cases of “joint physical custody,” the child resides with both parents for certain periods of time. If a parent has “sole physical custody,” the child resides exclusively with that parent. The other parent will ordinarily have visitation rights (also known as “parenting time”) with the child, again on an agreed upon or court-ordered schedule. Custody cases can be quite complex, emotionally taxing, and expensive (think attorneys’ fees).
Can a Convicted Felon Have Custody of a Child?
That depends. When it comes to custody and visitation, judges have a mandate to prioritize the best interests of the child. And it’s pretty much a universally accepted theory that children are best served by having both parents in their lives. So, to the degree possible, judges strive to make that happen. That holds true even if a parent is a convicted felon.
But the term “convicted felon” covers a multitude of felonies, so the real issue is the nature of the crime committed, including when the crime occurred. And this is where common sense comes into play. A judge is more apt to allow criminal offenders to play a role in their children’s lives if the crime committed doesn’t evidence behavior that would endanger the child. For example, a theft that happened 10 years ago, with no subsequent offenses by the parent, probably isn’t going to have a significant impact on a custody case. But a history of assault, especially if there are recent incidents, undoubtedly would.
So if the question is can a convicted felon get joint custody, as a general rule the lower the degree of the crime, and the further back it occurred, the more likely it is that the offending parent will be able to have joint custody.
In fact, depending on the other parent’s history and parenting skills, it’s possible for the offending parent to obtain sole legal and/or physical custody. Just remember, it’s the specific facts of each case that will guide the judge’s decision, with an eye toward the child’s best interests. Note that there are some felonies that are virtually certain to result in a court denying any form of custody to the offending parent. Usually, a state’s laws will address this issue. Examples of these types of crimes are: domestic violence against the other parent or the child; sexual assault against the other parent or the child; and, any other forms of child abuse. In fact, depending on the other parent’s history and parenting skills, it’s possible for the offending parent to obtain sole legal and/or physical custody.
Does It Make a Difference Whether a Parent’s Offense Was a Felony or a Misdemeanor?
As a rule, misdemeanors aren’t as serious as felonies. So, presumably, a misdemeanor will have less of an impact on custody. But state penal codes determine whether an offense is a felony or misdemeanor, and a judge may find that certain kinds of misdemeanors are troubling enough to warrant denying a parent certain custody rights. For example, some states list sexual misconduct as a misdemeanor. The offense may not be particularly egregious in comparison to other sex-related transgressions, but its nature might give a judge pause.
If you’re involved in a custody dispute that you can’t resolve on your own, you’ll have to file a custody complaint with the court. Almost invariably, court rules call for the parents to attend mandatory mediation in an effort to resolve the matter with the assistance of a trained custody mediator. The mediator won’t make a decision in your case, but rather will try to guide you and the other parent toward amicably settling your differences. You can certainly bring up a criminal history, and provide the mediator with any proof you’ve accumulated, such as police reports and other criminal records you’ve managed to obtain. Having knowledge of these past events may help the mediator in conducting the mediation session.
If mediation doesn’t work, the mediator will report back to the court. In all likelihood, the judge will then order a custody investigation, where an investigator (often a psychologist or social worker) will look at each parent’s history, current employment, and living conditions, and will interview family members and others who are significantly involved in the parents’ and children’s lives. Determining past crimes will undoubtedly be part of the investigation.
Often, the custody investigator’s recommendations to the court will prompt the parents to settle the dispute. But in those cases where it doesn’t, the court will schedule the matter for trial. In a trial, a parent can bring up the other parent’s criminal history.
Under most states’ rules of evidence, proof of a criminal conviction can be used to “impeach the credibility” of the offending parent, meaning it can cast doubt on that parent’s truthfulness. And, depending on the nature of the criminal history, the parent opposing a custody request will likely make the argument to the court that awarding custody to the felon (particularly physical custody) could possibly endanger the child’s welfare. This argument hits at the heart of the judge’s obligation to protect children. If your custody dispute has to go to trial, it’s advisable that you retain an attorney to represent you. Trying to master courtroom procedures and rules of evidence on your own can be a daunting task.
Can Expunged Records Be Used Against You in Family Court?
An expungement refers to the sealing of an arrest or conviction record. Expunged records aren’t available for public scrutiny. But as to whether expunged criminal records can be used in a custody case, you’d have to check your state’s court rules (or consult with a local family law attorney) to determine what, if any, access a judge might have to them.
Can a Parent’s Criminal History Affect Visitation?
To this point, we’ve talked primarily about custody. But a parent’s criminal past can also affect visitation. As mentioned above, courts try to preserve contact between parent and child. But if a parent’s history leads a court to believe that the parent shouldn’t be left alone with the child, it can order supervised visitation. This means that the parent can see the child only in the presence of a third party. If the risk to the child is minimal, that third party could possibly be a friend or family member. But if there’s a greater chance of harm, a judge is more apt to order that visitation take place in a state-approved facility, with trained personnel on hand.
Best Interest of the Child
One way that criminal allegations can have a direct impact on the court’s decision is when the criminal activity is related to what is in the best interest of the child. This is the standard that courts use to determine cases regarding child custody and visitation. Courts can often consider the criminal history of both parents as well as any factor that they believe is relevant in determining what is best for the child. Criminal activity can also bare on the morality and character of the parent.
In addition to considering the character and criminal history of both parents, the best interest of the child test often considers a number of other relevant factors. This may include looking at the age of the child, the relationship between the parents, the relationship between the child and each parent, his or her current situation, whether there are any siblings involved and whether the parents are likely to foster a positive relationship between the child and his or her other parent.
A court uses the best interest of the child standard with broad discretion. He or she may be able to award custody to one parent, award joint custody, award visitation or award supervised visitation. He or she may also be asked to restrict visitation. The judge will also likely have the ability to assign varying weights to different factors. When considering how important criminal history is, the court may consider who the victim of the crime was, what type of offense was committed, how long ago the offense occurred and the type of sentence the parent received. The court may also consider whether there is a pattern of criminal activity as demonstrated through multiple convictions.
The court will want to know who the victim was. If the crime involved a member of the family, this can have a significant impact on the case, and the judge may impose limitations on the parent’s custodial or visitation rights. In some instances, criminal convictions are so serious that they can result in the termination of a person’s parental rights.
The court will also want to understand the nature of the convictions. If the crimes involved domestic violence or drug or alcohol abuse, the court may believe that these crimes will have a direct impact on the person’s ability to effectively parent. Violent crimes may make the court fear for the safety of the child. Drug convictions may make the court order a drug test against the parent to determine if he or she is still using drugs.
The more recent a conviction is, the more weight that it will likely have to the judge. The older the conviction is and if it was an isolated incidence, the less likely the judge will put too much weight on it. Recent offenses that demonstrate a lack of character, dangerous behavior or poor judgment will carry more weight with the court.
Additionally, multiple convictions or longer sentences will have a negative impact on the parent’s impression on the court. If the other parent can establish that he or she will provide a stable environment while the challenging parent is frequently in and out of jail, this will likely carry more weight with the judge.
Charges vs. Convictions
There is a difference between being charged with something and being convicted. A charge in itself is not proof that a person actually committed a crime. If a parent is facing a charge at the time of a child custody case, the lawyer representing the defendant may argue that the charge should not be taken as evidence of the parent’s character since no conviction has occurred. Courts will likely put less weight on a charge than they do a conviction. However, depending on the nature of the charge and its severity and relevance to child custody situations, the court may consider it.
Domestic violence crimes are particularly relevant to the determination of child custody decisions. Many states have a domestic violence presumption in which the court is permitted to assume that it is not in the best interest of the child for the abusive parent to have custody or visitation of the child. This is particularly true when the violence is perpetuated against the child.
Crimes and Custody
Among the factors determining the best interests of a child are:
• The need for continuation of stable home environment;
• Evidence of a pattern of domestic violence in the home;
• Evidence of parental drug, alcohol abuse; and
• Evidence of excessive discipline, emotional abuse physical abuse.
And certain criminal convictions can be considered when deciding who gets custody. A criminal record with numerous drug possession convictions could be an indicator of drug addiction. Likewise, multiple DUI charges could point to alcohol abuse as well as a child’s safety when riding with a parent. Domestic violence charges, even if the child was not the alleged victim, are often viewed in a negative light, and obviously any child abuse convictions, even involving other children, will adversely affect any effort to gain child custody or even be used to terminate parental rights. Even certain parole or probation conditions that can impact a stable and continuous home environment.
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