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How Does a Criminal Background Affect Child Custody?

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There are a few scenarios where you could have questions about a criminal background and child custody. For example, you might personally have a criminal background, and you could worry that it will negatively affect your ability to gain custody of your child. Another scenario is when one parent has a new partner. Their former partner could do a background check on that person and discover they have a criminal record.

A third situation where this is relevant is if two parents are no longer together and one is charged with a crime after their divorce or separation. They could already have a custody agreement in place, but will this change in circumstance negatively affect the parent who’s charged with a crime?

These situations bring the question of how a criminal record affects the ability to get or maintain custody of a child, and the following are things to know with regard to this question. 

What’s In the Child’s Best Interest?

Child custody cases can often be highly contentious, and both parents are often making claims against one another. 

The goal is, unfortunately, to make one parent appear as if they’re unfit to be a primary custodian. 

A damaging allegation that can be made during custody proceedings is that the other parent has participated in criminal activity. This can be easy to prove if a background check is done and there is indeed criminal activity. There are other times when it’s nothing more than an allegation. 

Courts can consider the criminal history of one or both parents and any other factor they think could be relevant in determining what’s in the best interest of the child. A criminal history can also impact how the court views the character and morality of the parent. 

When considering the best interest of the child, the court has broad discretion. They can look at many other relevant factors aside from the criminal history and character of both parents. The court can consider the relationship between the parents, the relationship between each parent and the child, the current living situation, and whether other siblings are involved. 

Specifics of the Criminal History

If a child’s parent has a criminal history, specifics will be considered. For example, the court will consider if the crime was violent, the type of offense and how long ago it was. A court will also consider the sentence the parent received and whether there is a pattern of criminal activity with multiple convictions. 

The court would want to know the victim of the crime, if there was one. If the victim was a family member, this could weigh significantly on custody decisions. A judge could put limitations on the custodial and visitation rights of a parent if the crime did involve a family member. 

In situations where the criminal conviction is very serious, it can lead to the termination of rights as a parent. 

When crimes involve domestic violence or alcohol or drug abuse, the court is probably going to view these as having a direct and negative impact on the ability to parent. 

There could be fears about the safety of the child. Drug convictions may lead to drug testing or required rehabilitation programs. 

More recent convictions are going to carry more weight in the eyes of a judge. If there’s an old, isolated event, it’s not going to be as impactful on the decision of child custody as one that’s recent or any type of pattern of ongoing criminal behavior. 

Charges vs. A Conviction

Something else to think about as far as custody and criminal records is the difference between charges and a conviction. 

Being charged with something isn’t the same as being convicted. 

If someone is charged with a crime that doesn’t prove they actually committed it. If someone has a charge but not a conviction when they’re in the midst of a child custody case, the defendant’s lawyer can argue that it’s not evidence because there isn’t a conviction. 

While generally, a charge doesn’t carry as much weight as a conviction, if it’s a severe charge, it is more relevant to the case. 

Finally, domestic violence crimes are especially relevant when deciding on child custody. Many states do have a presumption regarding domestic violence, where the court can assume that it’s not in a child’s best interest for an abusive parent to have custody or visitation. If the violence was against the child, this is especially true. 

So can a criminal history affect child custody? In general, yes, with stipulations. 

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