To be blunt, criminal charges can, and likely will, affect the custody of your child in California. There are various degrees of criminal charges, and the more severe a charge is, the more impact it will have on your custody case.
A judge will always decide a custody battle with the best interest of the child in mind, which is why a criminal history may not always be detrimental or affect child custody. If a judge believes the charges on your record do not represent a current or future danger to your child, they are likely to overlook the criminal history. However, if the judge determines that the criminal charges put the child (or children) at risk or negatively impact your ability to be a fit parent, then this will have a grave impact on child custody.
What Kind of Criminal Charge is it?
All criminal charges are not the same and therefore, the court’s do not treat each charge the same when determining custody. The nature of the crime and the timeline will always be considered before the judge makes a ruling in a custody case.
There are some crimes that will likely always lead to a parent losing custody, and those include:
- Aggravated assault
- Crimes that endangered a child (negligence, recklessness, etc.)
- Domestic Violence
- Sexual assault and harassment crimes
In addition to considering the nature of the crime, a judge will also look at the following factors when deciding a custody case:
- Repeat offenses
- The sentencing for the crime
- When the crime occurred
If the crime was violent in nature or the parent has multiple crimes on their criminal history rap sheet, then it will likely hinder your custody case and cause you to lose your parental rights in some capacity (if not entirely). However, if the charges on your record were not violent in nature, did not occur recently, and there are no repeated offenses, then they may not affect your case at all.
The Effects of Drug and Marijuana Charges on Child Custody
Under California Family Code 3011 (a)(1)(B)(4), the habitual or continual use of a controlled substance, including alcohol and marijuana will greatly impact a child custody case.
Even though marijuana is now legal in California, prior charges can still be a crucial issue when deciding a custody case. If the use and charges impacted a child’s life, the court will likely use this against a parent. However, for the most part, marijuana is now treated like alcohol and will typically only affect a custody case when the use of the substance is excessive, consistently in the presence of the child, while operating a vehicle, and/or under the influence during your assigned time with the child.
Criminal charges related to drug use or selling of drugs can have a great impact on your case. However, the best way to abate these charges during a custody battle is to:
- show no repeated offenses
- show that the use of substances has ceased
- show that the charges did not have any impact on your child or your ability to parent
If there are drug charges on your record, a court will be able to require drug testing when determining custody of a child.
Do the Criminal Charges Impact the Ability to Be a Fit Parent?
A criminal charge will not always directly relate to the custody situation, but the charges can still impact the outcome of your case. The best interest of the child is always the top priority when determining the custody of a child or children.
A court, or other parent, can show that an arrest, charge, or illegal actions negatively impact that parent’s ability to adequately care for their child, regardless of how the crime itself impacted the child. A court can view criminal charges and illegal behavior as a pattern of poor decision making and an inability to care for a child’s life.
A court will never place a child with a parent when it believes the minor will be in an ill-fitting home or in harm’s way. A criminal history will likely lead a court to make assumptions about the parent and greatly limit their custody rights. An arrest record and criminal history will typically cause a court to rule in favor of the other parents and grant only limited visitations or supervised custody.
Even though a criminal history can have a severe impact on gaining custody of your children, each case is different and, in some instances, the charges can be overlooked if a judge determines that having custody would be in the child’s best interest.
Can you Overcome Criminal Charges?
Criminal charges will not always mean an automatic loss of custody rights. If you are seeking custody of a minor child (younger than 18), there are ways to increase your chances of gaining custody.
In the case of domestic abuse, a court will allow you to attend a fifty-two (52) week batterer program and complete the final evaluation to fully comply. Similarly, if you have a history of substance or alcohol abuse, you can receive substance abuse counseling and/or attend rehab to show that you have overcome substance use and will not affect your parenting.
Additionally, the best way to overcome criminal charges (regardless of severity), is to remain in compliance with all probation, parole, and restraining orders. Most importantly, avoid committing any additional crimes.
Contact a California Custody Lawyer
A criminal history will likely have an impact on your child custody decision, but it is always important to discuss your case with an attorney before any court proceedings. For more information on how criminal charges can affect a child custody case in California, contact the San Diego family law attorneys at The Law Offices of Steven M. Bishop.
To discuss your custody case with one of our attorneys, please call our offices at 619-724-4148 for a free phone consultation. We represent those throughout San Diego County and can help answer any custody questions you may have. You can also contact us by email.