There’s no denying that divorce and custody cases can get messy. And custody can get especially messy when one or both parents have criminal convictions on their past record. If you’re a parent seeking custody or visitation, could a past history of convictions affect your chances of having an ongoing relationship with your child? Possibly, but a lot depends on the individual circumstances of the case. Take a look at some of the things that you need to know about how legal convictions can affect custody and visitation.
Charges vs. Convictions
First, it’s important to understand the difference between being charged with a crime and being convicted of one. Your legal record will probably include any time you’ve been arrested or charged with a crime, regardless of the outcome of the case, and this could come up in court. If you’ve ever been arrested and charged with a crime but not convicted, either because the charges were dropped or because you were acquitted at trial, then legally speaking you weren’t guilty of that crime, regardless of the facts of the case. Under US law, you are innocent until you’ve been proven to be guilty, and if your guilt was never proven, then you are legally innocent.
But in family court, sometimes it’s not that simple. Imagine that, at some time in the past, you were arrested for assault. The police arrived, perhaps they broke up a physical altercation, perhaps the victim in the case had evidence – like bruises or scratches – that spoke to there having been physical contact. But at some point before trial, the charges were dropped. Perhaps the victim was no longer interested in pursuing charges. Perhaps witnesses were unavailable for court. Perhaps the state felt that they would be unlikely to get a conviction with the evidence available, so they decided not to go ahead with the case. Perhaps the police made a procedural mistake that caused key evidence to be thrown out, so the case was dismissed. Legally, you’re in the clear – but in a family court, that charge might still come up, and the court might decide to consider it anyway, even though you were never convicted.
Criminal courts have to prove guilt, which is a high bar. Family courts have to consider the best interests of the child, which is a lower bar to clear, legally speaking. A history of violence, even without a conviction, might be something that a family court will take into account when making decisions about custody or visitation. Convictions will usually be given more weight than charges without convictions, but it’s important to know that any arrest record may be addressed in court.
Type of Crime
If you do have convictions, another important thing that the courts will consider is what type of crime you’ve been convicted of. Shoplifting, for example, may disqualify you from working in a retail setting, but by itself, it’s unlikely to have too much of an effect on your ability to get some type of custody or visitation arrangement. It’s a crime, but it’s not one that is likely to make you a danger to your child.
On the other hand, if you’ve been convicted of a violent crime, like assault, that’s more likely to give a judge pause. And if you’ve been convicted of domestic violence, that can be even more worrying. If you’ve been convicted of abusing a child in the past, even if it’s not the child you’re currently seeking custody of or visitation with, that is likely to have a serious impact on your case. And if you’ve been convicted of abusing the child that you’re seeking to have a relationship with, the judge can not only deny you custody or visitation if they feel that you still pose a risk to the child, they can terminate your parental rights entirely.
Abuse isn’t the only crime that can have an impact on your custody case. Drug convictions, even when no violence is involved, can also work against you in family court. A judge may question your ability to parent safely if they suspect that you’ll be under the influence during your parenting time. The specific charge matters too – a conviction for heroin possession may have a bigger impact on your case than a conviction for marijuana possession. It’s likely that if you have drug convictions, you may need to agree to drug testing in order to be awarded custody or visitation.
Timing of the Crime
If you have past convictions on your record, right now you may be thinking, “yes, I made mistakes, but I’ve also paid for them, and it’s over now. Don’t I deserve to move on with my life?” And you’re correct. If your convictions are well in the past and your behavior has changed, you can make a good argument that you’re no longer that person and that you deserve to exercise your parental rights.
The farther in the past your convictions are, the less likely they are to prevent you from getting visitation or custody. It can also help to have evidence that you’ve changed your life in significant ways since your conviction. A steady job, a stable home, and character witnesses can all help make the case to the judge that your past is really in the past, and that you don’t pose any risk to your child. On the other hand, if your child’s other parent can produce witnesses or evidence to suggest that you’re still doing illegal things or showing a pattern of behavior that relates to your previous conviction, that will undermine your case.
If you have convictions on your record, it’s likely that your custody or visitation case will be more complicated than it would have been if you didn’t have those convictions, but exactly how complicated depends on many factors. Keep in mind that most of the time, family courts prefer to facilitate relationships between parent and child, not end them, so it’s entirely possible that you can be awarded some type of custody or visitation arrangement. A legal resource group like National Family Solutions can help you prepare for court so that you can effectively advocate on your own behalf.