Child Custody Battles for Parents With Criminal Records

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmChild custody decisions are tough and it could be even tougher if you have spent a while in prison. In any court of law in America, the decision will be in favor of the child’s best interests. Your child will play the most important role in your custody battle.

If the court finds that you were incarcerated, then it will first examine the residential status of both you and your spouse. Additionally, it will check the physical and mental condition of both of you.

Legal custody

Your incarceration in itself won’t be a ground for losing custody of your child, there are many other reasons which the divorce court considers. However, getting sole custody can be tough and you might have to settle for much less.

Parents with history of criminal record

In some households, getting partial custody of a child whose parents have done prison time can be next to impossible. In fact, they are not even allowed to stay in the same house where the child stays. If you are one such parent, then you should carefully consult your divorce lawyer and find a solution accordingly. Your visitation rights and child custody will depend on how serious your case is.

Sex offenders have a tough time getting child custody because society does not look upon such offenders too kindly. If your crime did not involve any sex-offense and if it also did not have to do anything with your child, then your chances are brighter. If you have refrained from further crime and stayed clean, the judge can most likely award you some custody. Getting accepted by your friends and family also becomes easier.

Working out a mediation plan

You need to work on a mediation plan with your ex-spouse and decide on custody and visiting hours.  If you have spent a considerable amount of time in prison, your chances might be slim. Then again, it depends on the court and the understanding between you and your ex-spouse.

Getting legal assistance

Whatever the case might be, get a good lawyer and seek expert advice. Even though you were incarcerated, you have certain rights, make sure you fully understand them before heading for a custody battle.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How Does Having a Criminal Record Affect Child Custody?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law Firm If there are children involved in a divorce and there is a battle over which spouse gets custody of the child or children, then either spouse having a criminal past or record can lower or even completely eliminate their chances of getting joint/shared or sole custody of the child. Also, one spouse can use the past criminal record or history of the other spouse to eliminate their chances of child custody and even rights of visitation. This is permitted by state laws in California under certain legal provisions, hence it is vital that the spouse with the criminal past hire a professional divorce lawyer to help fight his/her case.

Best interests of the child

Section 3011 of the California family code deals with the best interest standard. This section basically deals with what the family or civil courts take into consideration while determining the terms of child custody. One of the main factors that the courts consider is what is in the best interest of the child. So if one spouse has been engaged in criminal activities or conduct in the past this would be a major detrimental factor to the courts while determining which spouse should get custody of the child. The family courts will consider the following factors while determining child custody:

  • Whether either spouse has had a history of domestic abuse or violence towards any child that he is related to by blood, or an adopted child or any other child that is under their care and supervision.
  • Whether the spouse has been violent with or has shown violent behavior towards the other spouse.
  • Whether the spouse has a history of alcohol abuse or any kind of substance abuse.
  • Whether the spouse has a history of criminal activities or malpractices or any kind of criminal conduct or behavior in the past.

The court will carefully consider all these factors while determining which spouse will be granted custody of the child. The above factors also help to determine what would be best for the child and the child’s best interests are always put first to ensure his safety, happiness and good future.

A past history of criminal conduct would include any felonies and misdemeanors that fall under any of the categories mentioned in section 3011 of the Family Code. Custody and visitation rights would be affected based on the type and severity of the offense, time elapsed since the commission of the offense and expungment of the offense. These offenses include sex and hate crimes, child abuse, etc. The more serious or violent the offense the higher the likelihood of the spouse losing custody or visitation rights.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

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