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Family Law


February 19, 2022


Does a Felony Affect Child Custody and Visitation?

Judges are required to put the child’s best interests first when making decisions on custody and visitation. It’s a very widely held belief that children are best served when both parents are actively involved in their lives.

In most cases, judges work to grant custody to both parents, even if one has a criminal record. However, even when a judge works hard to watch the list of factors that might impact a child when you want to protect your child, the guidance of a child custody attorney may be necessary.

Child Custody with Criminal Record Is Possible

Can a convicted felon have custody of a child? The presence of violent or child-related charges is proof that a parent is unsuitable. But if the parent committed a non-violent offense, the judgment might not place as much weight on that.

Does criminal history affect child custody? When deciding who gets custody, the judge considers the details as well as the broader picture. They take into account how the parent’s prior criminal behavior might impact the life and wellness of the child, while also considering the charges brought against the parent.

Does a criminal record affect child custody? Yes. However, the custody of your child is not automatically terminated because of a criminal record.

Questions Asked in Court for Child Custody

When determining how relevant a parent’s criminal background is to their custody case, a court will consider various factors. Here are some of the questions asked in court for child custody cases:

Who Was the Victim of the Crime?

If a parent was convicted of harming one of their children emotionally or physically, the court can — and typically will — limit that parent’s rights.

Furthermore, if the parent had a history of harming children, a judge would be concerned for the child’s safety.

What Type of Crime Was It? 

Some crimes will impact a case more than others. For example, a court will be quite concerned with a history of DUI convictions or illicit drug use because these behaviors directly affect a parent’s capacity to care for their children. 

Parents who have previously been found guilty of abusing alcohol or other drugs may need to submit to regular drug testing to guarantee they are drug-free.

How Recent Is the Conviction?

If the conviction was just last month, the judge would place more emphasis on it than if it was long ago. Judges understand that people grow and change over the years, leaving prior mistakes in the past. 

Was It for an Isolated Incident?

Does a Felony Affect Child Custody

Even if a parent commits a non-violent crime, recurring offenses reveal their lack of character and lack of capacity for obeying the law. For example, if a parent is regularly incarcerated, a judge will question whether they can still give their kids a stable home.

Speaking with a local attorney if you are concerned about your actions can affect child custody is essential.

What Was the Sentence?

Judges consider if the sentence has or has not been served. When it comes to the sentence, the duration and character of the punishment are crucial. 

A past conviction that resulted in a lengthy sentence, or a string of lesser ones, might significantly influence custody because it demonstrates to the court that the parent in question would not be able to give their child a stable living situation.

Does a Parent’s Criminal History Affect Visitation?

Does a criminal record affect child visitation? Like getting custody of your child with a criminal record, visitation may also be impacted by a parent’s criminal history.

When possible, courts work to maintain parent-child contact. Visitation is possible if you have a criminal record. However, a court may impose supervised visitation if a parent’s past makes it clear they shouldn't be alone with a minor.

A court is likely to order that visitation take place at a facility that has been approved by the state and has trained staff on duty if there’s a higher risk of injury.

Can a Child Live with a Convicted Felon?

Can a felon get custody of a child? A child can live with a convicted felon, provided that the parent can provide a stable and secure environment.

To prove that they have a close, loving relationship with their child, the parent should prepare their testimony. Parents who are convicted felons must show that their offenses are behind them and that they have made progress. They must be able to support their child and give them a wholesome atmosphere to grow up in.

Charged vs. Convicted of a Felony — Is There Any Difference? 

Pending criminal charges and child custody can be complex. Being accused of a crime and being found guilty are two different things. When a person is accused of a crime, their charges are only pending; this may not affect child custody.

If a court or a jury finds that the charges are valid and the perpetrator is guilty, at that point, they are convicted rather than charged.

Felony charges and child custody can be tricky to navigate. Courts will give a conviction more weight than a charge. One parent may request a temporary or an emergency custody order until the matter is addressed, depending on the seriousness of the allegations.

Does It Make a Difference Whether a Parent’s Offense Was a Felony or a Misdemeanor?

Whether a Parent’s Offense Was a Felony or a Misdemeanor

Can a misdemeanor affect child custody? Misdemeanors often carry less punishment than felonies. So it seems that a misdemeanor should have less of an effect on custody.

Whether a crime is a felony or a misdemeanor is determined by state criminal laws. A court may decide that some offenses are worrying enough to justify denying a parent custody rights. For instance, sexual misbehavior is classified as a misdemeanor in several states.

Compared to other sex-related offenses, the crime may not seem particularly serious, but a court may be hesitant because of the nature of the act. Having a misdemeanor and child custody is possible, but it depends on the offense committed.

The Effect of a Drug or Alcohol Conviction on Your Child Custody Case

Can a convicted drug felon get custody of a child? Even though drug and alcohol offenses do not always equal violent crimes, they will make it more difficult for you to establish your case and get custody of your kids.

Drug charges and child custody are serious considerations for the court. Alcohol abuse that affects your kids, such as drinking while operating a car with them in it, will have a serious, negative impact on your custody battle.

You will likely be required to undergo a drug or alcohol test immediately after the court hears about your drug or alcohol misuse. Your recent use of these drugs can be identified with a hair follicle test.

Will Getting a Criminal Case Expunged Help in My Child Custody Case?

You may genuinely state that you don’t have a criminal record in all but a select few situations if your record gets erased. And child custody is one of the situations when an expungement doesn’t make much difference.

Can expunged records be used in custody cases? In short, your whole criminal history will be available to the court to hear your child custody case. Even if your criminal record has been wiped clean, police enforcement and court staff can still see it.

Instead of attempting to escape the topic, it’s preferable to explain to the judge deciding on child custody why you are a good parent despite your past misconduct.

What You Can Do

The best thing you can do for your case is to get an experienced child custody lawyer. The team at Brooks & Radchenko Law can fight for you. As a parent, it can be difficult to navigate the courts when fighting for child custody. The battle becomes even more difficult when you have a criminal record or pending charges. The court will watch the list of factors that may impact your child to decide on the child’s best interests.

Whether you’re facing charges yourself or navigating a custody battle with a spouse who has a criminal record, our team can help. Contact us today.

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