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How a Felony Record Can Affect Custody and Visitation

A parent’s criminal record can impact a court’s decision in a child custody case.

If a judge believes that a past criminal record might affect a parent's ability to be a good parent, they could potentially reduce or eliminate that parent's custody and visitation rights. A judge's responsibility in a child custody case is to ensure that all decisions regarding custody and visitation are made while considering and prioritizing the child's best interests, and they may feel a criminal record indicates a parent is unfit.

Violent crimes may lead a judge to believe a parent could potentially commit physical harm to the child. On the other hand, substance abuse may indicate the possibility of child neglect. In either case, felony charges can significantly impact a parent's custody or visitation rights depending on several factors.

A parent who is charged with or convicted of a felony runs the risk of losing their custodial rights. They may be limited to only supervised visitation or, in some cases, be denied visitation altogether. Depending on the severity of a parent's alleged or confirmed crimes, the child's other parent or another family member can file for a temporary or emergency custody order to ensure the child is safely cared for until the case is resolved.

What felonies could impact my custody rights?

Certain crimes that are more likely to negatively impact your custody rights include:

Because of the nature of these crimes, a judge may feel they indicate the possibility that a parent is unfit or capable of harming their child. As a result, the parent involved with the crime may have their sole or shared custody reduced to supervised visitation. In more severe instances, a court could choose to terminate a parent’s rights.

Is being charged the same as being convicted?

There is a difference between being charged with a crime and being convicted. When a person is charged with a crime, they are accused of a wrongdoing that has not been proven yet. A conviction means a judge or jury has found a person guilty of committing a crime. Courts will often put less weight on a charge compared to a conviction.

What if my criminal record is expunged or sealed?

Even if a parent's criminal record is sealed, it may still impact their custody rights if the crime is related to child abuse or domestic violence. In any case, the judge will consider all factors that even slightly indicate the child's well-being is questionable in a parent's care.

Can I regain my rights after losing custody?

While it's a complicated and challenging process, regaining your rights after losing custody can be achieved by:

  • Addressing the reason for revoked custody
  • Following any applicable court orders
  • Working with a legal professional
  • Completing an in-home evaluation

What factors will the court consider?

Courts will put less weight on a charge vs. a conviction

A judge will consider various factors when deciding how relevant a parent's criminal history is to their custody and visitation case.

Who was the victim of the crime?

The courts can, and usually will, limit custody and visitation rights if a parent has caused emotional or physical harm to another person. If the victim was one of the parent's children or another child, a judge may heavily weigh this as part of their decision.

What type of crime was it?

Previous substance abuse charges related to alcohol or drugs can be highly problematic to a judge because this is behavior that directly impacts the parent's ability to care for their children. Parents with previous convictions of illegal drug use or abuse of alcohol may have to undergo routine drug testing to ensure they are substance-free.

How recent is the crime?

In some instances of prior convictions, the duration between the crime and the present can directly impact the outcome of a custody case. A prior DUI conviction from a parent's youth will have less impact on custody and visitation than a DUI conviction in the past year. As time passes, a court may be more understanding of a crime. While time certainly helps, violent crimes may be exceptions to this tolerance.

Was it an isolated incident?

Even if a parent's crimes are not violent, they may cause concern for a judge if they are repeat offenders. If a parent displays a pattern of poor behavior or judgment, it can raise a judge's concerns about their ability to make good decisions or follow rules. Since custody and visitation agreements in a parenting plan are court orders that must be followed, a proven track record of failure to comply with rules may lead the court to believe a parent will not follow them. If a parent is frequently in and out of jail, their ability to provide a safe, stable living environment will undoubtedly be questioned.

Where did the crime take place?

Just as laws about custody vary from state to state, so do criminal laws. Because state penal codes determine whether an offense is categorized as a felony or a misdemeanor, the crime itself may be considered if the state it took place in considers it a less severe charge. If the crime leads a judge to believe a child's safety is at risk in that parent's care, it may still impact their decision, even if it's a misdemeanor in the convicted state.

The process of navigating the legal system and the effect of a criminal charge on a custody case can be challenging. Working with a family law attorney can offer many benefits if you have concerns about how your criminal record may impact your next custody hearing. With their understanding of local legislation and impartiality of view, a lawyer can help you navigate your case while keeping your child's best interests in mind.

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