Are you in the middle of fighting for custody of your child? Do you have a criminal record? Does the other parent of your child have a criminal record? In either case, you may be wondering if your criminal record can negatively affect your ability to get custody?
The answer to the last question is not a clear-cut one. There are a lot of factors that go into it – factors the judge considers when determining what is in the best interest of the child. If you have been charged or convicted of a crime, however, it may have a specific negative impact on your ability to obtain custody of your child, regardless of whether that custody is sole, shared, partial, or supervised.
In fact, 23 Pa. C.S. § 5329 enumerates the specific crimes a family law must consider when determining child custody. This statute also states the judge must consider not just your criminal record with respect to the enumerated offenses but anyone in your household. Further, the statute also states the offenses are not limited to charges and convictions in Pennsylvania but include charges or convictions of the same or similar offenses in other jurisdictions.
When the court learns of your criminal record with respect to any of the above-enumerated offenses, it must determine if you "pose a threat of harm to the child before making any order of custody to [you]."
Consideration of Criminal Conviction: the Enumerated Offenses
Below are each and every offense listed under 23 Pa. C.S. § 5329 and which requires a family law judge to consider if a parent (or someone in his or her household) seeking custody of a child has a criminal record.
- 18 Pa.C.S. Ch. 25 (relating to criminal homicide)
- 18 Pa.C.S. § 2702 (relating to aggravated assault)
- 18 Pa.C.S. § 2706 (relating to terroristic threats)
- 18 Pa.C.S. § 2709.1 (relating to stalking)
- 18 Pa.C.S. § 2901 (relating to kidnapping)
- 18 Pa.C.S. § 2902 (relating to unlawful restraint)
- 18 Pa.C.S. § 2903 (relating to false imprisonment)
- 18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure)
- 18 Pa.C.S. § 3121 (relating to rape)
- 18 Pa.C.S. § 3122.1 (relating to statutory sexual assault)
- 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)
- 18 Pa.C.S. § 3124.1 (relating to sexual assault)
- 18 Pa.C.S. § 3125 (relating to aggravated indecent assault)
- 18 Pa.C.S. § 3126 (relating to indecent assault)
- 18 Pa.C.S. § 3127 (relating to indecent exposure)
- 18 Pa.C.S. § 3129 (relating to sexual intercourse with an animal)
- 18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders)
- 18 Pa.C.S. § 3301 (relating to arson and related offenses)
- 18 Pa.C.S. § 4302 (relating to incest)
- 18 Pa.C.S. § 4303 (relating to concealing the death of a child)
- 18 Pa.C.S. § 4304 (relating to endangering the welfare of children)
- 18 Pa.C.S. § 4305 (relating to dealing in infant children)
- 18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses)
- 18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and performances)
- 18 Pa.C.S. § 6301 (relating to corruption of minors)
- 18 Pa.C.S. § 6312 (relating to sexual abuse of children)
- 18 Pa.C.S. § 6318 (relating to unlawful contact with a minor)
- 18 Pa.C.S. § 6320 (relating to sexual exploitation of children)
- Section 6114 (relating to contempt for violation of order or agreement)
- The former 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance)
- 75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs)
- Section 13(a)(1) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device
Many of these offenses are obvious as to why they are listed. Most of them relate to violence in either the physical or sexual form. Others, however, can hit home really quickly, like a DUI. Many responsible people have been charged or convicted of a DUI.
The Evaluation Process to Determine You are NOT a Threat to Your Child
When you have one of these crimes on your criminal record, then you must be out of prison if you are seeking custody. You may have also turned your life around and are now a respectable member of your community. If so, there is good news: custody is still possible.
First, the court will conduct an initial evaluation. This evaluation is in-person and takes place with the judge and conference officer. Upon completion of the evaluation, the judge may order counseling by a mental health professional or another evaluation.
The court will appoint a qualified professional who specializes in treatment specific to your particular offense and needs. Counseling may include more than therapy alone; it may also include classes or other methods as needed and warranted.
After the initial evaluation or during counseling, additional evaluations may be ordered. These additional evaluations may take place prior to the court granting custody. They may also take place after an order granting you some kind of custody has been issued, and any time the court believes you (or the household member subjected to this statute) pose a threat to the child, the court can schedule a hearing to modify the custody order to reduce or revoke your custody rights.
For either counseling or evaluations, the court will likely order you to pay all or part of the costs.
Contact a Family Law Attorney Today
If you have been charged with a DUI, violent crime, and/or a sex crime, your ability to obtain child custody may be in danger. That's why, first and foremost, if you have a child, you should always consider fighting the charge to avoid a criminal record at any cost. Second, if you have a criminal record, not all is lost – you can still obtain custody, you just have to do it with the right frame of mind and with the right attorney.
Joseph D. Lento has been practicing criminal and family law for more than 15 years. His varied and expansive legal practice makes him an exceptional attorney in cases where family and criminal activity intersect and can harm your relationship with children. Contact the Lento Law Firm today at 888-535-3686 to learn more about how Joseph D. Lento may be able to help you with respect to criminal records and child custody.