How can I keep custody of my daughter when her father has a criminal record?

Learn more about how one parent's criminal record can affect custody.

Question

My daughter is almost seven months old. Her father will soon be 20, but he acts like he is 12. He’s used drugs and has a criminal record (for assaults.) Since my daughter’s birth, he has only visited her once a month and given her a total of $120. But now he says he wants custody. We haven’t been to court yet, but we have a mediation coming up. How can I make sure I keep my child?

Answer

Mediation

Dealing with custody battles isn’t easy, so it’s great that you’ve taken the first step of attending child custody mediation. Mediation is a dispute resolution process that involves three-way meetings between parents and a specially-trained mediator, who is typically also an experienced family law attorney. The mediator's role is to facilitate a conversation, ask questions, propose solutions, and help guide you to an agreement.

It’s important to understand that mediators can't decide custody, so if you and your ex-partner don’t agree on a final resolution, or you’re not making progress, the court won't require you to sign an agreement or continue with additional sessions.

Before your mediation session, you should try to consult with an attorney. Many mediators ask attorneys to submit a case summary, which is where you and your attorney can detail the reasons why it’s best for you to maintain sole custody of your daughter.

Addressing a Criminal History in Court

If you can’t hire an attorney, then your first step should be to obtain evidence of any wrongdoing by your daughter’s father. For every allegation you make, you’ll need to have proof. If he has a history of abusing drugs, typically you can get police records, court documents, or arrest records that will prove these incidents to the mediator. Without evidence, it will be his word versus yours, which doesn’t tend to hold much water.

If your ex-partner was convicted of a crime, his record would be public (unless the judge sealed it), and you can get a copy of the file by asking the court clerk. Police records are also available to the public, so if you go to the police station, you can ask the officer at the desk what form you need to fill out to obtain the records you need. If you need records that aren’t readily available to the public, you can ask your attorney to file a subpoena (a legal request) for the documents, which can happen much faster than if you try on your own.

If your daughter’s father committed a crime against a person and you can’t obtain records in time for court, it might be beneficial for you to contact the victim of the crime. Sometimes the victims are willing to write an impact statement, which describes the incident and how it affected life after it happened. It’s critical that above the victim’s signature is the date, and a clear statement stating “I declare under penalty of perjury that the above statement is true and correct.” If you plan on going to trial, you should ask the victim to come to speak in person.

Given that we live in an Internet-driven world, you might be able to obtain your ex’s criminal background check if you use one of the many online, background search programs. Make sure you do some research to ensure that the program you choose is valid and be prepared to spend a little money to see real results. You should be ready to enter your ex’s name and birthday.

Regardless of the records and other evidence you obtain, you’ll need to bring multiple copies. Always try to have at least one certified (stamped by the court or agency) for the mediator (or court), and a copy for yourself and your daughter’s father.

Child Support and Custody

As for the lack of visitation and child support for your daughter, buy a calendar and list every date of visitation and payment of support. Your argument about your daughter’s father not visiting often or providing support will go a lot further with the mediator and judge if you have detailed records. You should also offer receipts (if you have them) from when he paid support.

If mediation fails, the court will take over and begin custody proceedings and possibly a paternity investigation—if you weren’t married when your daughter was born. Custody evaluation standards may vary from state to state, but typically, the court will base any custody order on what’s in your daughter's best interests.

Most courts will evaluate a variety of factors before deciding where the child should live, and whether the noncustodial parent should have supervised or unsupervised visitation. As for child support, once the court orders a child support award (or you and your ex-partner agree to an amount) if your daughter’s father fails to pay, he’ll face multiple consequences like fines, loss of a driver’s license, or even jail time.

If your mediation session doesn’t produce a satisfactory result for custody and child support, consult with an experienced family law attorney for advice on what steps you should take next.

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