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Can You Get Custody If You Have a Criminal Record?

Criminal Charges Can Impact Custody  

Having a criminal record does not necessarily mean that you will be barred from having custody of your child. However, the court will take your criminal history into account when making custodial determinations. The best interest of the child is the court’s priority; thus, they will consider whether your history presents a threat to the child’s wellbeing.  

What the Court Will Consider 

In considering the best interest of the child, the court will consider the following with regard to a criminal record: 

  • Whether the crime or penalties impact parenting abilities. The court considers a variety of factors when deciding what is in the child’s best interest, including each party’s parenting abilities. They will consider whether the offense you committed and/or the consequences of conviction affect your ability to care for your child.  

  • When the offenses occurred. A recent conviction can have more weight than crimes committed long ago. If a crime was committed years ago, a parent can prove that they have changed. Parents with older convictions do not have to prove that the penalties for their conviction (i.e. probation or parole guidelines, mandated therapy, etc.) do not affect their ability to parent).  

  • Whether the crime is a part of a pattern. While a conviction for a single offense years ago will likely not have a bearing on your case, numerous convictions can be seen as evidence of poor judgment and/or an inability to adhere to court orders/the law. Multiple convictions that get progressively more serious in nature can also be seen as evidence of escalating behavior. In addition, for offenses related to drugs or alcohol, the court may look into the parent’s history of substance abuse and ask for a drug test. The court wants to make sure that parents going through custody proceedings have recovered from any addiction problems they might have had in the past.   

  • What crimes were committed and against whom. The court can believe you are a threat to your child if you have committed offenses against your family and/or your child, as well as faced convictions for crimes like stalking, child abuse, kidnapping, sex crimes, drug-related offenses, and domestic violence.  

New Jersey Law Concerning Criminal Records & Custody  

According to N.J. Revised Statute 9:2-4.1, a person convicted of sexual assault (as defined by N.J.S. 2C:14-2) cannot be awarded custody or visitation rights to a minor, including children born because of or who were victims of sexual assault. The law does allow for an exception to be made if the court is shown evidence that awarding custody or visitation is in the best interest of the child. If custody is awarded in such a case, the court must wait at least 10 days before enforcing the child custody or visitation orders to allow appeals or judgment of the order to take place.    

The Court Will Also Consider a New Partner’s Criminal History  

When considering whether to award custody, the court will also consider a new partner’s criminal record. If you are in a relationship with someone who has been convicted of a crime, that person may not be allowed to be present for or have any contact with your child during visitation and custody proceedings. The court wants to ensure that the child is safe and in no danger. If a partner’s criminal record presents any sort of threat to the child, custody may be denied or visitation limited. 

Family Law Attorneys Serving PA & NJ Clients  

The attorneys at William Kirby Law, Family Law Attorneys can help parents involved in custody cases understand what can be used against them in court. Whether you, your child’s other parent, or either of your partners have a criminal record, we can advise you on your best options and develop a case strategy with your best interest in mind.  

Learn how our attorneys can help with your child custody/visitation case by calling (215) 515-9901.