Does A Criminal Record Affect Child Custody? (what the court looks at)

Quick answer: a criminal record does not automatically cost you custody. Courts look at what the offense was, how long ago it happened, whether it has anything to do with parenting, and what you have done since. What they are really asking is whether the record means a risk to the child today.

To some extent, a criminal record can affect child custody outcomes. It is in the best interests of the child that the court consider the nature of criminal records that may have been presented by the other party. 

While a criminal record carries a lot of weight in custody cases, not all criminal convictions meet the threshold to bar you from winning custody of your child. 

What do judges consider on criminal records when making child custody decisions?

Before a decision is made, the court will analyze the situation case-by-case. 

It is a tough situation for judges when there are cases of criminal records presented by one of the parties. However, the court would want to understand the following: 

Who was the victim of the crime?

If one party in a child custody battle is found to have been convicted of a crime where the victim was the child or children, that is one of the most serious things a court can see. It can cost that parent custody and, in the worst cases, lead to limits on contact or even termination of parental rights. 

Whether the party involves induced psychological or physical harm, the judge will consider that party unfit to take custodial rights of the child or children. 

The nature of the crime 

There are different types of crimes that the court would consider before making decisions on child custody cases. 

The nature of the crime would dictate whether the court would consider a parent fit or unfit to hold custodial rights or major decisions affecting the life of the child. That could be:

• Felony vs misdemeanor 

A felony carries more weight than a misdemeanor. A felony is a serious crime that carries with it heavy penalties while a misdemeanor carries lighter penalties. Therefore, a misdemeanor is less likely to bar a parent from being granted custody than a felony. 

• Domestic violence 

Domestic violence involves crimes of violence that are directed to one’s former or current spouse who are or were in marriage or cohabitation, and who both have borne children together. It can be perpetrated towards the other spouse or the children. 

Cases of domestic violence carry a lot of weight during child custody cases. This is because the court would want the children to grow in a peaceful and safe environment that is free of fears and intimidation. 

A parent who may be proven to have perpetrated violence of any form towards the other parent or children is more likely to lose custody or even visitation rights. 

• Sexual assault and child abuse crimes 

Crimes of sexual assault and child abuse also carry the same weight as domestic violence crimes. 

A party that has committed these crimes is disadvantaged when it comes to a child custody case. For the best interests of the child, that party may be denied custodial rights for the safety of the child or children. 

Sexual assault crimes come in different forms. If one parent is found to have committed these crimes, he or she is likely to lose custody of the child to the other parent. 

Courts also pay attention to sexually abusive or degrading behavior in the home, even when it was never charged as a crime. Examples include:

• Forcing one to dress in a particular way that is sexually appealing. This may not be good in the sight of the child or children. 
• Insulting one sexually or with sexual names that aren’t appealing. This may include labeling the other partner as a prostitute, and when this is in the presence of the child, it may work against the partner perpetrating these abuses. 
• Forcing or manipulating one to have sex without consent or willingness. 

Old vs recent criminal record 

An old criminal record carries less weight as compared to a recent one that one parent may have been convicted of. A criminal record may indicate a time when the child was not yet born, or even before marriage. If the crime that one parent was convicted of is a recent one, then the judge would analyze the nature of that crime and the impact that may have if that parent takes custody of the child. 

An old criminal record is not a guarantee that the court would ignore. The weight of the crime that the parent had committed would also determine whether he or she is fit to take physical custody of the child or even make decisions that affect the child or children. 

Charged vs convicted of a felony 

The outcome of the child custody case would also depend on whether one parent is charged or convicted of a crime. If a parent is charged, that is an allegation that has not been proven by the court and if a parent was convicted, it means the parent was proven beyond doubt that he or she committed the crime. Regardless of whether charged or convicted, the judge will also consider both cases individually before making a decision that would impact the life of the child. 

Non-violent crimes 

There is an isolated incident where the crimes are non-violent. Such crimes may not necessarily impact the outcome of the child custody case but are subject to analysis by the court. When these crimes become repeated offenses, it may raise some questions that would have some impact and may affect child custody decisions by the court. 

A D.U.I (Driving Under the Influence) would be an example of a non-violent crime that may affect custody or visitation.

Quick checklist: what hurts, and what matters less

Judges look at relevance, recency, and risk. Here is how that usually plays out.

What weighs heavily against a parent

• Domestic violence, child abuse, or sexual offenses
• Recent convictions, or criminal activity that is still going on
• Offenses tied to drugs or alcohol that affect parenting
• A pattern of behavior, not a single old incident

What often matters less

• An old, non-violent misdemeanor with nothing since
• Offenses that had nothing to do with children, violence, or substances
• Clear proof of rehabilitation: treatment finished, steady work, a clean record since
• The other parent having issues that are just as serious, or worse

Felonies that would prevent one from winning child custody 

There are different types of crimes and not all of them would qualify to deny the parent the right to make major decisions regarding the child or even take sole physical custody. It all depends on the nature of the crime or criminal record that is presented. 

There are specific crimes that are very likely to prevent one parent from being granted custody of the child or even getting his or her parental rights terminated and such crimes include:

Homicide

Homicide is a serious crime that refers to the killing of one person by another. It doesn’t matter whether a person killed is a member of a family or not. 

In a child custody case, a parent who carries a killing criminal record is deemed unfit to be the custodial parent of the child. The court would want to protect the child from psychological and physical harm and that parent is very likely to lose custody. 

Stalking 

California Penal Code 646.9 prohibits stalking that involves repeated following or surveillance of another person willingly or maliciously, malicious or willful harassment of another person, and the threat of inducing fear to another person. 

In most states, stalking is a crime and when this happens, a person convicted of such crimes is likely to lose a custody case if that situation arises. 

Aggravated assault

An aggravated assault involves a crime of an attempt to kill, rob, murder, assault with a deadly weapon, or rape another person. This is a serious crime that when presented in a child custody case would prevent the party associated from winning custody. 

If the victim of aggravated assault is the other parent or the child, the court would act to protect the child from fear and psychological harm by denying the party associated with such crimes their parental and custodial rights. 

Kidnapping 

Kidnapping is a crime that involves abducting someone and taking them hostage or captive. If one parent has been involved in kidnapping the child, that would automatically discredit that parent from being granted custody over that child. 

Impacts of a criminal record on visitation 

A criminal record can affect visitation to some extent. Heavy crimes that are violent in nature may limit a parent from accessing the child or even making important decisions about their lives. What is even worse is when parental rights are terminated. 

However, not all the crime records would warrant limitations on visitation. The court works to protect the interests of the child or children and knows that both parents are important in the life of the child or children. In some instances, the court may allow for supervised visitation, where one parent can enjoy visitation rights in presence of a third party. 

How to prepare for a custody case when you have a criminal record 

If you have a criminal record and perhaps you have rehabilitated or reformed, you can convince the court with proof of your rehabilitation and the steps that you may have taken to have your old criminal records expunged. 

Depending on the nature of the crime that you may have committed, and how old that crime record has existed, it may or may not have weight when you provide proof that you have rehabilitated and reformed from such behaviors. 

Be upfront about it

Hiding a record almost always backfires when it comes out later. Tell your attorney everything, disclose it in your paperwork, and bring certified copies of how each case was resolved. Tell the story as what has changed, not as excuses.

Bring proof, not promises

• Certificates from treatment or classes you finished
• Negative test results, sponsor letters, or meeting logs if substances were involved
• Proof of steady work and a stable home
• Letters from counselors, probation officers, employers, or others who know you now

Keep the kids out of it

Never talk to your children about the other parent’s record, or your own. Courts see that as putting the child in the middle, and it hurts your credibility.

Consider an outside evaluation

When a record is part of the case, a guardian ad litem or a custody evaluation can give the judge an independent view of the risk today, beyond what is on paper.

Good to know: sealed, expunged, or out-of-state records can still show up in background checks, so be ready to address anything that might surface. And a clean record alone does not make the other parent the better choice. Courts compare the whole picture: who has been involved, who has been stable, and who meets the child’s needs.

Conclusion 

It is in the best interests of the child for the court to examine criminal records where they are presented to the court by the other parent or by the witnesses. 

This serves to provide the child a safe environment free of fears, threats, intimidations, and any form of abuse. Therefore, any criminal record is very likely to affect the decisions of the court regarding child custody and visitation. 

A criminal record on its own does not preclude parents from getting full custody of their children.

This should not discourage anyone from doing what is best for the child. On the contrary, it may serve as a stimulus to conduct further research into how you can convince the court that your criminal records will not affect visitation or custody rights over your children. 

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