How Do Criminal Convictions Affect Custody?

Losing custody of your child is an overwhelming and deeply frightening possibility for any parent. Unfortunately, being convicted of a crime can seriously jeopardize your parental rights. Family court judges often take criminal history into account when determining custody arrangements, and certain offenses—such as domestic violence, child endangerment, or drug-related charges—can significantly reduce your chances of maintaining custody or even securing visitation rights.

If you’re currently facing criminal charges and are concerned about how they might affect your relationship with your child, it’s important to take legal action. The experienced family law attorneys at Randall, McClenney, Daniels & Dunn understand what’s at stake and are committed to protecting your legal rights. We will work tirelessly to build a strong defense and pursue the best possible outcome for both you and your family.

What is Custody?

Custody in family law is divided into two distinct types: physical and legal. Decisions are made in Virginia courts based on what the court believes is in the best interest of the child.

Legal Custody

Legal custody is the term used to define a parent’s right to make important life decisions for their child’s upbringing and welfare, including those relating to healthcare, education, and religion. One parent (sole legal custody) or both parents (joint legal custody) may be awarded legal custody.

Physical Custody

Physical custody refers to where the child will live. A court may award sole or joint physical custody. In a sole custody scenario, the child lives full-time with the custodial parent and usually has visitation with the other parent.

In case of joint custody, the child will live with both parents for equal periods of time. The child may move back and forth between parental homes, or the parents may “take turns” living in the home where the child lives.

Related Article: If I Have Sole Custody, Do I Have to Allow Visitation?

What Are the Factors Considered for Child Custody in Virginia?

A court focuses on the best interests of the child when determining child custody in Virginia. The following factors are primary considerations:

• The role each parent plays in their child’s life
• The age and mental condition of the child
• The age and mental condition of each parent
• Each parent’s ability to provide care
• Relationship between each parent and child
• Child’s needs and relationships with other household family members
• Willingness of each parent to maintain child/parent relationship with the other parent
• History of domestic abuse or other acts of threats or violence

If one parent has a criminal conviction, the court will likely carefully examine the type of crime and weigh this into their decisions.

Felony-Specific Considerations for Custody Cases

If the court feels a parent’s past criminal record might negatively impact their ability to be a good parent, they may decide to restrict that parent’s custody and visitation rights. Felonies that might affect a parent’s custody rights include the following factors.

The Type of Crime

Since the court prioritizes the child’s best interests, a judge may determine that a parent with a conviction for certain crimes is unfit to receive primary custody or unsupervised visitation. This decision is influenced by the serious nature of certain offenses, including:

• Aggravated assault
• Murder
• Sexual assault
• Domestic violence
• Kidnapping
• Drug Crimes
• Child abuse

A judge may also heavily weigh any substance abuse charges or drunk driving where a parent was found guilty. The reasoning is that being under the influence will directly affect the parent’s ability to provide adequate care for a child. This will likely play a role until the parent undergoes successful treatment and passes drug tests.

Who the Victim Was

Courts often will limit a parent’s custody and visitation rights if the incidents cause physical harm or emotional pain to another individual. If the harm was done within the family home, especially to their children or another child, this will strongly impact their decision-making.

When and Where the Crime Happened

A judge will take a look at when and where the criminal activity took place. Penal codes vary in different states, so what one state deems as a felony may be a misdemeanor in another. The court will evaluate the activity surrounding the crime and consider whether the activity puts a child’s safety at risk, even if the charge was a lesser charge than a felony.

Isolated or Recurring Incident

Repeated convictions or behaviors are another consideration a court looks at when determining custody. For example, if one parent shows a pattern of poor judgment or behaviors, the judge may question their ability to effectively parent a child.

On the other hand, if the criminal conviction is an isolated incident and the parent otherwise has a longstanding good record, a court will most likely weigh this in as well.

Essentially, it all goes back to the “best interest of the child” concept which will always be foremost when making legal decisions, such as custody and visitation.

Can a Convicted Felon Have Custody of a Child?

Judges realize it is best for children to have both parents involved in their lives and will do their best to accommodate this. Usually, restrictions will only be made if a court believes a child will be endangered in some way.

Whether a parent who is a convicted felon can obtain custody of their child will depend upon several factors. Family court judges and a child’s guardian ad litem (GAL) will assess the nature of the crime and its relevance to the child’s safety and well-being and make recommendations and decisions based on them.

What Kinds of Crimes Will the Family Court Consider?

The type of crime committed will impact a family court’s custody decision. The court will carefully evaluate the severity and context of the parent’s criminal history.

For instance, if a parent committed a non-violent theft a decade ago, even if it was a felony, this would have less of an impact on a custody case than a felony involving a firearm or some type of violence.

Some types of crimes, including repeat offenses, felony offenses, recent criminal convictions, violent crimes, domestic violence, and substance abuse, will influence a judge’s final decision.

Certain felony convictions, such as domestic violence, will usually result in custody denials.

How Does Domestic Violence Affect Custody?

Domestic violence is usually heavily weighted in a Virginia family court. It is common for both parents to bring forth any history of verbal or physical abuse that occurred over the course of the relationship.

The court will always prioritize the safety and best interests of a child when allegations or convictions of domestic violence are present. If either parent is shown to be an abusive one, they will probably have limits imposed on the ability to spend time with their children. In extreme cases, they may be denied parenting time with their children.

Can a Child Custody Attorney Help if I Have a Criminal Record?

Yes, parents with a criminal record who enlist the help of an experienced Virginia child custody attorney can improve their chances of getting custody or visitation.

A lawyer can listen to your side of the story, develop a strong defense, explain what to expect in court, address any court concerns, and protect custody rights despite prior convictions.

If previous court orders exist, your attorney will evaluate them and the circumstances bringing you back to court.

Can I Regain Custody Rights if My Case is Expunged or Sealed?

If a criminal conviction was expunged or sealed, it is technically not available for public scrutiny to be presented in family court for a custody case. However, criminal convictions are sometimes brought up in a family court hearing. Depending on the nature of the crime, it might impact your custody case. This is an important topic to discuss with your family law attorney.

Why Clients Choose Randall, McClenney, Daniels & Dunn, PC

Randall, McClenney, Daniels & Dunn, PC is proud of its reputation for being a “client first” law firm. Our family law attorneys are locals and maintain strong ties to our community. With more than 85 years of collective experience handling legal matters, each one of our lawyers brings their experience, knowledge, and a strong drive to advocate for every one of our clients.

The attorney-client relationship is very important to us. Should you choose our law office to represent you in your child custody case, you can rest assured knowing our lawyers will listen to your side of the story and take a compassionate approach to your situation.

In addition to having child custody lawyers on our team, we are also well-versed in criminal law. Our law firm has the legal resources and fully understands all the issues involved in a child custody case involving prior criminal convictions.

Testimonials

“I was kept well informed on all aspects of my case! I could not be happier with the representation that I was provided! 100 percent recommend….” — Adam T.

“I would highly recommend this law firm to anyone in need of legal services. From calling to inquire and set up an appointment, to meeting with the staff to assist me — it was all a very smooth process. They are true professionals [who] understand their clients, and [are] extremely knowledgeable. They make sure you receive the best service, and I am truly grateful for everyone at this law firm that assisted helping me get the best outcome.” — Anna R.

Learn How Your Criminal Record May Impact Custody

Are you facing a custody case or modification of an existing custody order and are worried about previous criminal charges? You should consider obtaining legal advice before your hearing. Child custody disputes tend to get complex, and if a criminal conviction is involved, you may want legal representation.

The compassionate and understanding attorneys at Randall, McClenney, Daniels & Dunn, PC take a client-first approach to every case. We will tirelessly advocate for our clients.

To schedule a free consultation with the legal team at Randall, McClenney, Daniels & Dunn, PC, call our office at 757-742-6115 or, if preferable, fill out our law firm’s online contact form.