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Winning custody of your child with a criminal conviction

If you are at the outset of a child custody case one of the key factors that will go into the evaluation as to what type of custody you should have of your child is your ability to care for and provide a stable environment for your child. To evaluate you in this way, a judge will look back at your parenting history to see the extent to which you have had a role in raising your child. If, for instance, you have had very little contact with your child in years past it is unlikely that you will be able to become the primary conservator of your child.

If the reason why you have not been able to play a role in your child’s life is because you have been convicted of a crime and have served time in jail or prison. Beyond anything about your attributes as a parent, a child custody case ultimately breaks down according to what a judge determines to be in the best interest of your child. This is the standard that a judge will go by, and the law in Texas allows judges a fair amount of latitude when making decisions accordingly.

How will your criminal background be evaluated in a child custody case?

Obviously it will not be a positive attribute of your child custody case to have committed a crime in your past. Keep in mind that your opposing party will be doing their best to discredit you and strengthen their own case as well so you will have some odds to overcome in getting ready for your trial date.

Who was the victim of your crime? If you committed an act of violence against a family member, especially your child, then this would stand almost zero chance of being successful in attempt to successful win primary conservatorship of your child. In fact if the crime was committed within two years of your current child custody case you will not even be able to be named a joint managing conservator of your child. You will be a possessory conservator of your child which means that your opposing party would be the sole managing conservator. You will have fewer rights and duties to your child as well as the possibility of only supervised visitation.

For any other offense, a court will consider the type of offense as well as how long ago the conviction was. If we are talking about a crime from twenty five years ago that does not involve a child, your spouse or theft of some sort it may not even be relevant to the case. If you received little or no jail time and if it was a one time only offense and conviction you become more and more able to withstand this conviction and achieve your child custody goals.

Concerns about repeating acts of violence against a child

The most important take away from the beginning sections of this blog post is in regard to crime against children that involve violence. If any past criminal convictions of yours involve violence against children the judge will want to do who the child was, what their relationship to you is and the nature of the crime and conviction. Especially if the crime is one that involves your own child I can tell you that limitations on custody and visitation are likely.

It makes sense that if you have hurt your child before, physically or emotionally, that it would not take much for you to do so again. I have seen it happen before that serious crimes committed by a parent against their children have resulted in termination of parental rights. Obviously this is an extreme example but it is something to keep in mind. If you have any history of these kind of crimes it is not in your best interests to take your case to court. If at all possible you should work with your opposing party to settle your case before it can get to a point where a judge is able to weigh in on the subject.

Prior convictions and child custody

Beyond discussing the type of offense that you had previously committed, a court will want to look seriously at convictions that do not relate to your child or any other child. Domestic violence, drug and alcohol abuse rank very highly among those past criminal convictions that can destroy a person’s chances at being named a primary conservator of a child or even a joint managing conservator with standard visitation rights. Anger management issues and a propensity to engage in domestic violence are not characteristics that you would want associated with you in a child custody case.

The Texas Family Code specifically states that it is not in the best interests of a child for you as a parent to have unsupervised visits with your child if a court finds that there is credible evidence of a pattern of past or present neglect or abuse of a child or spouse by you. This means that the deck is stacked against you from the start of your case. You would need to either diminish the effect of the evidence of domestic violence or provide evidence as to why this conviction or history of domestic violence should not trigger this presumption against you.

The effect of a drug or alcohol conviction on your child custody case

Criminal convictions regarding drugs and alcohol are not inherently the same as a crime involving violence but are still going to make your case difficult to prove if you want to win primary custody of your children. Once your history of drug or alcohol abuse is presented to a court it is likely that you will be ordered to take a drug/alcohol test immediately. If it is a hair follicle test, your usage of these substances from the past few months can be detected. Usage of a substance like alcohol that involve your children, such as driving under the influence of alcohol with your children in the vehicle, will have a disastrous effect on your child custody case.

How long ago was your criminal conviction?

As we stated earlier in this blog post, the amount of time in between your criminal conviction and your child custody case will have an effect on the weight given to that conviction as far as evidence is concerned. If the conviction was from decades ago and was a one time occurrence the weight given to the conviction would likely be much less than a conviction from a year ago for a crime you have repeatedly committed.

Likewise, if you had to serve longer sentences in prison then it is hard to convince a judge that you respect the law and wouldn’t do anything to put your child in harm’s way. If you have served multiple five year prison sentences in your past it is not difficult to assume that you are likely to do so again in the future. Who would your children live with during your sentence? How would their lives be effected by their parent serving time in prison? These are all questions that a judge can avoid by limiting your future contact and rights to your children.

Questions on the effect of criminal convictions on child custody cases? Contact the Law Office of Bryan Fagan, PLLC

If you have questions about how your criminal history will effect a child custody case that you are involved in please contact the Law Office of Bryan Fagan, PLLC today. We represent parents from all walks of life and do so with great pride. A consultation with one of our licensed family law attorneys is free of charge and are available six days per week here in our office.


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