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.

14 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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