In a divorce, the parents seeking physical or legal custody of minor children must show the courts they are capable of providing for them physically, emotionally, and financially. The child’s best interests take precedence above all other issues in the divorce. From this perspective, it is easy to see how criminal charges can impact child custody arguments.
There is no universal rule for how these matters are handled. A lot depends on the type of offense, if it is part of an ongoing pattern of criminal activity, and if the criminal behavior interferes with a person’s ability to parent safely and effectively. For help with this matter, the parent should speak to a lawyer.
In New Jersey and across the United States, various crimes are enforced differently depending upon their severity. The consequences for non-violent crimes, like fraud or shoplifting, are going to be quite different than penalties for more serious crimes, like armed robbery, assault, or murder. A single, non-violent crime will not always prevent a person from obtaining custody. The courts are likely to give a remorseful parent that is committed to never offending again the opportunity to play an active role in their child’s life.
Charges and Convictions
There is a difference between a criminal charge and a criminal conviction. A charge is not considered proof that a person committed the offense. That is why a parent facing a minor criminal charge would argue that it should not be used as evidence of their parental fitness or character. However, if the charge is particularly serious or involves children, the courts are likely to consider it, even without a conviction.
What Crimes May Impact Child Custody?
In family court, certain crimes weigh more heavily than others during custody proceedings, particularly offenses involving sex, violence, or drugs. Some crimes that may affect child custody include:
- Domestic violence
- Spousal abuse
- Delivery of a controlled substance
- Drug conspiracy
- Drug paraphernalia
- Drug trafficking
- Child pornography
- Child molestations
- Date rape
- Indecent exposure
- Internet sex crimes
- Rape and sexual assault
- Sexual abuse
What Factors Influence Child Custody?
Every case is unique, and it is up to the judge to consider all of the prevailing factors when making custody determinations. When a parent is charged with a crime, the courts ask the following questions to gather more information about the nature of the crime and the potential risk to any children:
- Is this a first offense?
- How extensive is the parent’s criminal record?
- Did the crime involve weapons or physical violence?
- Who was victimized by the crime?
- Were children endangered or harmed by the crime?
- Did the crime happen a long time ago or recently?
- What was the sentence for the crime?
The courts use all of this information to make a determination about a parent’s ability to care for the child. They will be more forgiving of someone who committed a non-violent crime many years ago. A big factor is whether or not a child was harmed by the crime.
What Should I Do if I am Charged with a Crime During the Divorce?
As soon as possible, one should contact a divorce lawyer and a reputable criminal defense lawyer. If they are not part of the same firm, make sure they are in contact with each other. It is crucial to always be completely honest and transparent about the circumstances surrounding a criminal charge. Tell the lawyers exactly what happened.
Since criminal records are available to the public, it will not help to lie about prior convictions. In fact, attempts to deceive the courts will not be well-received. The lawyers need to know all the facts of the case so they can represent their client appropriately and take the ideal legal course of action.
Can I Still Fight for Custody?
Any parent charged with a crime during a divorce should first notify their divorce lawyer as soon as possible. Depending on the charges, the lawyer may make the argument to the judge that the charge is irrelevant because it is not a conviction.
The criminal defense lawyer plays another role. They work on building the strongest defense possible to get the charges reduced or dismissed. Maybe the police officer did not follow protocols when making the arrest. Maybe the defendant was misidentified or was not even there at all. There are a wide range of reasons why people are falsely charged with crimes.
If the defense strategy is successful and the charges are dismissed or reduced, that will have a positive impact on the custody proceedings. If the charge sticks and the parent is convicted of the crime, the courts will assess the severity of the offense and the potential risk to children in the home and go from there.
How Does a Parent’s Crime Affect Visitation?
Physical custody is where the child resides most of the time. Legal custody is the right to make important decisions on the child’s behalf, such as education, health care, and religion. Visitation is slightly different.
Visitation generally refers to the time the non-custodial parent spends with the child when the other parent has sole custody. In terms of visitation, the court’s job is to determine if it is safe for a parent to be alone with the child for any length of time. They consider all of the factors listed above, paying special attention to criminal charges or convictions involving violent acts, sexual abuse, or drugs.
Can I Get Emergency Custody of My Child?
While custody cases take a bit of time to process through the court system, there are situations when time is of the essence. Someone who discovers their child’s other parent has been charged with sexual abuse or a violent crime may understandably want to keep their children away from that person until they can be assured of their safety. If there is an immediate threat to the child, contact the divorce lawyer who is managing the case immediately.
Provide any documentation to support a petition for emergency custody, including court records, news reports, medical reports, and police reports. This evidence backs up the claim that a parent is a danger and children should be removed from their home. With the guidance of a lawyer, complete a petition in the appropriate court. Due to the nature of the request, the courts do not require the parent petitioning for emergency custody to notify the parent alleged to be unfit.
From there, a court hearing is scheduled to approve or deny the request. Hearings are held in a timely manner to ensure the safety of the children. Emergency custody is only temporary, and a parent with concerns will need to pursue permanent custody in the future.
In the United States, family courts take the stance that children benefit when both parents are involved in their lives. However, it is also their job to protect children from parents with a history of dangerous criminal behavior. Anyone with concerns about a child’s safety and well-being should contact the authorities and consult with a trusted lawyer to take immediate steps to protect them.
Somerville Child Custody Lawyers at Lyons & Associates, P.C. Represent Parents with Urgent Custody Matters
A criminal charge or conviction can affect child custody in certain cases. If you or your ex-spouse has been charged with a crime and you have questions about how it will impact your custody agreement, call the Somerville child custody lawyers at Lyons & Associates, P.C. today. To schedule an initial consultation, call us at 908-575-9777 or complete our online form. We are located in Somerville and Morristown, New Jersey, and we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.