Criminal Convictions Impact on Child Custody Cases

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.