Criminal Records and Custody

It is not uncommon for parents, or others seeking custody of a child, to have criminal records. Not every criminal charge is equal, and the Court is not required to consider all criminal charges in the same way. There is a list of specific offenses that the Court MUST consider in awarding custody, which includes murder and rape, but which also includes more common charges like DUI, drug possession, and child endangerment. Even among the charges on that list, the seriousness of the charge, the amount of time that has passed since the charge, and any rehabilitation efforts will have an effect on the extent to which the Court will consider or scrutinize that charge in deciding whether or not to award custody to a party.

There is no criminal charge that absolutely bars a party from being awarded some form of custody, but more serious charges (or repeat offenses) are more likely to result in a party being awarded supervised custody or even no custody. Any charge involving physical violence or domestic abuse, especially to a child or to another party in the custody action, must receive additional scrutiny.

It is important to disclose your criminal history at the beginning of the custody action. Any dishonesty regarding one’s criminal history will not be looked upon kindly by the Court, and any dishonesty on a document filed with the Court or in the course of the proceedings may even amount to perjury. Parties are required to complete Criminal Record/Abuse History Verification forms, which include all of the specific offenses that the Court must consider in awarding custody. While the Court may consider additional offenses, offenses that do not fall on that list are typically not the types of offenses that will have a huge bearing on child custody, as the charges on the list capture most of the violent, child-related, or substance-abused-related offenses that the Court is especially concerned about.

In some cases, the Court may require a party with a criminal history to undergo a 5329 evaluation (see our article on 5329 evaluations for more detailed information). The purpose of a 5329 evaluation is to evaluate whether or not a parent poses a risk of harm to the child(ren) involved in the custody matter as a result of that party’s criminal charges or convictions. For example, a party convicted of DUI may abuse alcohol or may drive with the children in the car while intoxicated, though the mere fact that a party was charged with or convicted or a DUI does not automatically mean that they pose a danger to child(ren). If there is a determination that a party does pose a risk of harm, the Court may put guidelines in place to reduce that risk, such as ensuring that the party is submitting to alcohol testing, complying with probation, seeking counseling, or taking other steps to reduce the risk of harm.

If you are interested in learning more about the effect of criminal records on custody matters, or if you wish to discuss the details of your unique case, contact Tanner Law Offices at (717) 731-8114 to schedule a consultation with one of our attorneys.