Criminal Convictions Impact on Child Custody Cases

UPDATED: Jul 12, 2023Fact Checked

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Jeffrey Johnson

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 12, 2023

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UPDATED: Jul 12, 2023Fact Checked

At least in theory, every child custody case boils down to what is in the best interest of the child. Because the character and propensities of a parent are relevant to this determination, anyone with a prior criminal conviction may find their history a major factor in subsequent child custody proceedings. A family court judge typically has broad discretion to make custody orders that are in the best interest of the minor children. They will usually review a variety of factors including the criminal history of the parents. How much weight they give to your prior history will depend on a number of factors including:

  • The victim of the offense
  • Type of offense
  • Age of the conviction
  • Nature of the sentence
  • Multiple convictions

If you have a criminal history and are in a child custody dispute, the judge will want to know the identity and relationship of your prior victim. If your conviction involves an emotional or psychological injury to one of your own children, the court can, and usually will, impose limitations on your custody and visitation rights. The concern is that if you have hurt your child once, you could hurt your child again. If the prior conviction involves higher level charges like sexual abuse or life-threatening injuries, the court can potentially go even further and terminate all of your parental rights to your child.

The second major concern for the court will be the nature of your prior convictions. The court will give more weight to convictions that involved domestic violence and drug/alcohol abuse. Convictions such as assault, battery, weapons offenses, stalking, etc. are likely to make a court worry about anger management and violence issues making them a significant factor in a custody proceeding. Many state laws now authorize courts to impose a’domestic violence presumption’ against you if your ex-spouse establishes a history of domestic violence. The effect of this presumption is that the court is legally allowed to assume that you will be a bad parent because of your criminal or abusive history, and thereby should only be awarded limited or supervised custody of your child.

Even though a drug conviction is not a per se crime of violence, a drug or alcohol related conviction will also make obtaining custody difficult. Once the court is made aware that you have a prior drug related conviction, it will typically order you to submit to a hair follicle drug test. Hair follicle drug tests can reveal drug use for several previous months. A positive drug test will almost certainly preclude joint custody and will likely result in any visitation being supervised. Similarly, a prior DUI conviction is also likely to be a significant factor in custody proceedings. A family law judge will often view driving under the influence as dangerous behavior that could put minor children in danger.

The third factor that family courts review is the age of your criminal conviction. If, for example, you have a very old DUI conviction and introduce evidence showing that it was an isolated incident, the negative impact of the conviction may be reduced. The court’s focus can then shifts to present day circumstances and how they would affect the child. Recent convictions or criminal offenses that show poor judgment or reckless/dangerous behavior will typically be more difficult to overcome in a custody proceeding.

Frequency and the nature of your sentence are the fourth factor considered by family courts. Even if your convictions are not for’crimes of violence’, multiple convictions or longer sentences will reduce your chances of getting full custody of your child. A string of multiple convictions raise concerns that you cannot follow orders of the court or the law. Lengthy sentences create stability issues because family courts generally frown on kids being bounced from relative to relative while you finish a prison sentence. If your ex-spouse can establish that he or she will provide a stable living environment, your ex-spouse will be more likely to gain full custody. Courts will limit your access to overnight or supervised periods of visitation.

Family courts do not have a perfect formula for deciding who should get custody or visitation. If a custody decision is close, the presence of any criminal conviction can be the final factor that influences the court’s custody orders.

Case Studies: Impact of Criminal Convictions on Child Custody Cases

Case Study 1: Domestic Violence Conviction

A parent has a prior conviction for domestic violence. The court views domestic violence as a significant factor in custody proceedings. Due to the history of abuse, the court imposes limitations on the parent’s custody and visitation rights.

The concern is that the parent’s past behavior may pose a risk to the child’s well-being. The court may even consider terminating all parental rights if the prior conviction involves severe charges like sexual abuse or life-threatening injuries.

Case Study 2: Drug-Related Conviction

A parent has a prior conviction related to drug or alcohol abuse. The court orders a hair follicle drug test, which reveals drug use over the past several months.

As a result, the court is likely to preclude joint custody and may require supervised visitation. The court views drug-related convictions as a potential danger to the child’s safety.

Case Study 3: DUI Conviction

A parent has a prior conviction for driving under the influence (DUI). The court considers DUI as dangerous behavior that could put the child at risk.

The parent’s DUI conviction becomes a significant factor in custody proceedings, and the court may limit overnight visitation or require supervised periods of visitation.

Case Study 4: Multiple Convictions and Lengthy Sentences

A parent has multiple convictions and has served lengthy sentences. The court is concerned about the parent’s ability to follow court orders and maintain stability for the child.

The presence of multiple convictions raises doubts about the parent’s judgment and adherence to the law. As a result, the court may grant full custody to the other parent, who can provide a stable living environment.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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