Can You Get Child Custody If You Have a Criminal Record?

In a custody case, when one parent has a felony conviction, it may raise additional concern and complexity. Continue reading to learn more about how a felony conviction might affect a custody plan.

By , Retired Judge

The question of how a parent's criminal record can affect custody comes up fairly often. The full impact of a criminal history will depend, to some degree, on a particular state's laws. But on a more generic level, the answer typically lies in good old common sense.

What Do We Mean by "Custody"?

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.

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.

How Does a Parent's Criminal History Play a Role in a Mediation or Trial?

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.

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