Friday, December 10, 2010

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.

In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.

Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent's ability to care for their child without supervision.

Other crimes that might seem unrelated, such as theft or prostitution, may not cause a Judge to question the parent's ability to care for the child, but rather their suitability as a role model. These types of convictions might be a reason to limit time with the child, but may not require supervision (assuming that this criminal behavior is in the parent's past).

Judges have access to the criminal record of parents, and when issues are raised like those discussed above, the court will often request the records of both parents before making a determination. This is also true in any 209A Restraining Order cases.

It is also important to note that the Criminal Offender Record Information (CORI) system is changing in 2012. All of the changes are listed here. Some of the changes that could affect your case, include a new procedure for having an inaccurate record amended, and new permissions for access to sealed CORI by court order in domestic abuse/child custody actions and where a person’s safety is at stake.

34 comments:

  1. I think it does. If we will think for an instance that a parent has a criminal records such as pedophilia does he or she has the right for child custody? But still it depends on his or her capacity to have the rights.

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  2. question - 1) if parent paying child support is convicted and incarcerated for his criminal charges (say child pornography) should that parent be "legally" able to terminate support child while incarcerated and 2) should he have any access to said children upon his release (i don't think so)

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  3. Teresa and anonymous,

    This post is intended to share the state of the law in Massachusetts, not necessarily what it "should be." The law prohibits visitation specifically in one instance (in which one parent has been convicted of first degree murder of the other parent). However, the best interest of the child standard is very broad and in most instances criminal activity is going to affect a parent's visitation and custody rights because that criminal activity could endanger the health, safety or welfare of the child. This is especially true in the cases where the criminal activity specifically victimizes children.

    There is no hard and fast rule, however, and termination of parental rights is not a guarantee when there is criminal activity. Ultimately the choice falls to the Judge to determine what is in the best interest of the child.

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  4. OK , I would like to ask this : 11+yrs.ago i was convicted of a sex offense that did not involve a minor...I no longer have to register since my conviction because of the law at the time . I was told by a third party .not an expert or esquire but, told that because of my conviction which was one count of sexual battery ; that I was prohibited by existing stature From having custody ;joint or otherwise .is this correct ?

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    1. It depends on what state you are in. Some states may have prohibitions by statute regarding certain offenses. In Massachusetts, for instance, there is a statutory prohibition against custody when one parent has committed first degree murder against the other parent. I am not aware of any other statutory prohibitions in Massachusetts, so the Judge's interpretation of what is the best interest of the child would control. Evidence of prior convictions, especially of a sex offense, would certainly be relevant to that determination.

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  5. My husband has 2 strikes for violent crimes and has full custody of our two children. Now children fear him due to abuse but are afraid to talk. Doesnt the judge see his criminal history?

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    1. At any hearing relating to custody where a criminal record is raised with the court, the probation department of the family court (also sometimes call family service) will pull each person's criminal record and present it to the Judge. If you don't think this has been done you should ask when in court.

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  6. would charges of child porngraphy; in which there was no conviction and the charges withdrawn; long before the child was even born have an effect on child custody matters? or do judges normally presume innocent unless proven guitly.

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    1. These determinations are extremely fact specific and whether or not it will have an effect is something you should discuss directly with an attorney. The court will likely be able to see the arrest on your record.

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  7. You should not have rights to your child if you were ever arrested for something bad or gross. Period. No if, ands or buts. Be a good parent and dont do the wrong thing.

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  8. If one parent has a record and the other does not and the parent with the record has battery, domestic battery committed in presence of a child resukting in bodily injury, public tox? the parent with no record but a underage 6 years ago who would win?

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    1. If the parents can't agree on appropriate parenting time and restrictions, then the Judge will have to decide. Judge's have broad discretion to evaluate how all of this information affects the best interest of the child, and the child's potential safety, health and welfare. The Judge could restrict time with either or both parents, but it would all depend on a deeper investigation into the facts regarding both parents and not just a comparison of their criminal records.

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  9. If the criminal case is still active even this is just a theft, is this matter

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    1. Any criminal record can have some effect because it shows a potential refusal to abide by the law. That doesn't mean every Judge would find it relevant, though. Judge's have broad discretion to evaluate how all of this information affects the best interest of the child, and the child's potential safety, health and welfare.

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  10. If mu husband has two strikes for arson and kidnapped can he get full custody of my son?

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    1. You should speak with an attorney about the specifics of your case. You have not provided enough information to answer your question and "full custody" is a very vague term.

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  11. If the father has a criminal record including domestic violence against his mother and Is a known drug addict can he get custody? I have a restraining order against him for domestic violence against me along with threats of taking my daughter once she is born. He hangs around drug addicts including his mother who has been arrested in the past for cooking meth.

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    1. You should consult counsel in your local jurisdiction. While most jurisdictions are going to apply a best interest of the child standard, this blog post is specific to the law in Massachusetts.

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  12. My grandchild may possibly have contact with a relative with a violent criminal history. Could this impact custody?

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    1. Yes, it could impact custody. Whether or not that contact would impact custody would depend a lot on the specific circumstances of the case. The impact is not always obvious without all the facts, because the court has to weigh many factors when determining the "best interest of the child."

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  13. My sons father and I have burglary and petty theft charges on our juvinile record. We also have a battery charge against each other that was dropped. I also had a accusation against me (made by a meth head who was later bakeracted) for hitting my 2 month old 4 years ago. (It wasn't true) and the case was closed. My sons father has recently had 3 weed charges which are all on his adult record. My son is 4 and has living with me soley since the day he was born in just worried about if my past (that happened before I got pregnant) will effect the judges decision.

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    1. These determinations are extremely fact specific and whether or not it will have an effect is something you should discuss directly with an attorney. The court may or may not be able to see your juvenile record and you should request a copy of your criminal record to see what is visible.

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  14. My daughter passed and left a 5 year old child, both my daughter and grandchild resided with me entire life, father never in child life, had 13 counts of sexual battery on a child, arrested 30 days jailed, released now charge drop my state attorney no information can he get custody in Florida

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    1. You should speak with a local attorney in Florida.

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  15. My ex has a criminal history of manslaughter and continues to get back on probation for things like contributing to a minor. His criminal history was never taken into consideration. We have recently learned his attorney and the judge are in the same special interest group. I have never been in trouble with the law yet geographical limitations were imposed upon me. My daughter does not know who her father is because he is always in and out of jail. I have never witness such a kangaroo court. Not sure what my rights and my 2 year old rights are?

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    1. If you're not sure what your rights are you should speak with an attorney in your area.

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  16. I have drug charges and I'm currently on probation not a conviction it was over a year ago. I live in tx my ex lives in Wyoming while in hi custody my 3 kid have been abused and he has gotten 1 dwi 3 pi's and 2 family violence now the kids have been put in emergency custody of the state of Wyoming will my record keep me from getting them back

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    1. You should contact an attorney in Wyoming to determine how the state of Wyoming evaluates the best interest of children in custody matters.

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  17. Could a domestic abuse charge that was dropped by the other person hurt chances of custody? Will the judge be able to look at the police report about the incident and does the report have an impact?

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    1. In Massachusetts the Judge would likely have access to the fact that there was a charge, which would be on the CORI report. The Judge would not have the police report unless is submitted into evidence by one of the parties or their counsel. The Judge could consider the testimony of both parents about any prior incident, whether it resulted in a charge or not, as that incident might affect the health, safety or welfare of the children. This would likely be one factor in the Judge's consideration of what is in the best interest of the children, but it would not be the only factor, and how much weight a Judge would give it would depend on the testimony of each party about the incident that led to the charge.

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  18. The domestic abusr charge i am talking about is the mother against her boyfriend. I am seeking custody of our child and i have the police report, she was put in jail and drunk. Would that help my case?

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    1. The answer is essentially the same. In Massachusetts the Judge would likely have access to the fact that there was a charge, which would be on the mother's CORI report. The Judge would not have the police report unless is submitted into evidence by one of your or your counsel. The Judge could consider the testimony of both parents and other witnesses (like the mother's boyfriend) about the incident, and then determine whether the alleged behavior might affect the health, safety or welfare of the children. This would likely be one factor in the Judge's consideration of what is in the best interest of the children, but it would not be the only factor, and how much weight a Judge would give it would depend on the testimony of each party about the incident that led to the charge.

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  19. Thank you very much for your advice. I have a new question. I have my daughter this weekend. She takes dr. Perscribed a.d.d medicine. The mother intentionally did not send the medicine with her,i believe to cause her to go through withdraws. My daughter gets very panicked, angry, and extremly emotional when she does not take it. I asked the mother about it and she claims she has been off the medicine for a month, witch i know is untrue because she sent the medicine with her last weekend and my daughter claims she has taken it every day this week. It is not a medicine that you just stop cold turkey. I saved her txt and recorded what my daughter said. If she intentionally did that to cause me a rough weekend what can i do? Is that neglect or endangerment not following dr. Orders and denying me psychological medicine that is effecting my daughters wellbeing this weekend? I am going to try to call her dr. Tomorrow morning.

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    1. This question is too specific for this forum and I would suggest discussing your concerns with a local attorney or mediator.

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