A Parent's Criminal Record and How it Can Affect Child Custody in Pennsylvania

Posted by Joseph Lento | Dec 06, 2016 | 0 Comments

How does a parent's criminal record affect child custody in Pennsylvania?Parties in a custody dispute in Pennsylvania, whether the child's parents, grandparents, or others, in a child custody case, often have concerns regarding the other parent's "fitness"  to care for or raise the child; one parent may question how much TV the other parent allows, another parent may believe that a child has to spend more time doing homework rather than playing sports, and so forth.  Many such issues have no definitive "right" or "wrong."  There are instances, however, where many parents, and also the presiding Family Court, will have concerns that must be addressed before a custody decision is made.

Will a criminal record be considered in awarding custody in Pennsylvania?

Pennsylvania Family Courts, whether in Philadelphia, Montgomery, Delaware, Bucks, or Chester County, will use the "best interests of a child" as the guide in deciding custody.  Many factors are considered by the Court when determining what is in the child's best interests, and one such factor is the criminal record of a party seeking custody, and also the criminal records of any household members.

How does a parent's criminal record affect child custody in Pennsylvania?

Not all crimes are considered the same by the Court however.  Pennsylvania Family Courts must consider certain criminal charges and convictions, mostly relating to violent crimes, including domestic violence, spousal abuse, and child abuse.  Other crimes, however, including DUI and drug-related offenses will also be considered by the Court in determining custody.  Concerned parents may be disappointed to learn that other crimes will not be considered by the Court; theft crimes will not be considered (even though in other proceedings such as in civil or criminal court such crimes can speak to a person's honesty or lack thereof); gun crimes, as unexpected as that may be, will also not be considered.

Should I file for Temporary Custody or Expedited Custody if the other parent has a criminal record?

When a parent learns that the other parent faces criminal charges that may pose a risk to the child, the parent (who is not facing the charges) should consider filing a Motion for Temporary Custody, or in Philadelphia for example, a Motion for Expedited Custody in some instances.  A Motion for Emergency Custody may even be warranted if circumstances allow.  Unlike petitions for Expedited Custody which are more liberally approved for filing by the Court, parents should understand that petitions for Emergency Custody will only be approved in the most serious of cases; when a child's welfare or health is in imminent danger for example.  Depending on whether there is an existing custody order or not, a petition to modify custody may also be appropriate.

For example, filing for Temporary Custody or Expedited Custody when criminal charges are pending against the other parent will allow Family Court to hold a hearing in a (relatively) expeditious manner.  Although criminal charges are not convictions, the Court can take appropriate action to protect a child or children pending the resolution of the criminal case against the charged parent. 

How will a criminal conviction affect custody in Pennsylvania?

Criminal convictions are a different matter however.  If a parent of member of a parent's household has any of the "enumerated" criminal convictions, Family Court must take action.  Such action can include ordering evaluations of the parent or party who has the criminal conviction(s), ordering counseling, and so forth.  Ultimately, Family Court is expected to consider how the criminal conviction(s) affect the best interests of the child or children, and to respond accordingly.

When parents and attorneys prepare for a custody hearing in Pennsylvania, the list of enumerated crimes below should be considered and an inquiry should be made if the other parent or party is facing or was convicted of any of the following offenses. To obtain information regarding evidence of criminal charges or criminal convictions in Pennsylvania, the "Pennsylvania Unified Judicial System" website maintains a database of such information.  The website can be accessed via the following link:

Ultimately, the Family Court judge will need to be presented with this information regarding criminal charges and/or conventions to decide if there is a risk of harm to the child or children involved in the custody.

The List of "Enumerated" Criminal Offenses that Can Affect Custody in Pennsylvania

The law in Pennsylvania regarding which criminal offenses will be considered by Family Court in awarding custody is "codified" by statute.  The applicable Pennsylvania statute follows:

Consideration of criminal conviction (23 Pa. C.S. § 5329)

(a)  Offenses.--Where a party seeks any form of custody, the court shall consider whether that party or member of that party's household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that parent when considering the following offenses:

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 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 death of child).

18 Pa.C.S. § 4304 (relating to endangering 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 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.

It may be obvious that some offenses will be considered by Family Court to be reason for more concern than others, but having any of the above-referenced convictions can put a parent's custody rights, whether existing or prospective, in serious jeopardy.

Pennsylvania Child Custody Attorney to Address Parent's Criminal Record

Watching too much TV and not spending enough time doing homework is not good for most children.  Such concerns, however, are relatively minor compared to the risk that a child faces when in the care of a parent or other party who is not responsible, or puts him or herself in positions that can harm a child.  People can be wrongfully charged and convicted of criminal offenses, but often, where there is smoke, there is fire.  When such concerns arise, parents must make sure that their child or children's welfare is protected.  In contrast, when it is alleged that a parent is not fit to care for their child because they had run afoul of the law in the past, despite turning their life around since any prior indiscretions, the parent who faces the allegation must present themselves in the best manner to the Court if they are in fact fit to care for their child so they can be granted the custody rights that they deserve. 

Parents are often at opposite ends of the spectrum in a custody dispute, and that is why when Family Court decides custody, it is often hearing two different versions of events.  Whether seeking custody in Philadelphia, Montgomery, Delaware, Bucks, or Chester County, to achieve success regarding the desired custody of a child or children, proper evidence and argument must be presented to the Court, including how a criminal record affects a custody decision (or should not affect in the case of an parent who has a criminal record).  Having the right attorney in your corner can make all of the difference in the outcome of a custody hearing in Pennsylvania.  Contact our Family Law Team today to learn how we can help.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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