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 battles, 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 a serious matter in a child custody case and would result in 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 battles. This is because the court would want the children to grow in a peaceful and safe environment that is free of fears and intimidation.
- 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.
Sexual assault or abuse crimes include but are not limited to:
- 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.
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.
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 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.
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 battle if that situation arises.
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 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.
Just like child alienation, if one parent is found culpable of alienating the child from another parent, then that parent is also likely to lose custody.
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 battle 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.
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.