Custody disputes can be hard on anyone. Angry spouses or parents can pull all the skeletons out of the closet in an effort to make you look bad and get more time with their children. But how much more do you have to worry if you have a felony or misdemeanor on your record? Will your criminal history affect your child custody battle? What can you do to prepare for the worst?
In this blog post I will discuss if a Colorado family law judge will consider the past criminal history by either party as part of a child custody battle. I will discuss the weight of different kinds of convictions and provide suggestions for what you can do to make sure your criminal history doesn’t keep you from doing what is best for your children.
Most Criminal Convictions Don’t Directly Affect Child Custody
Colorado custody law directs family court judges to allocate parental responsibility (including decision-making powers and time spent with the children) according to the best interests of the children. There are several factors that go into this decision:
- The parents’ wishes for parenting time;
- The child’s wishes for parenting time (if they are old enough to have their own opinions);
- The child’s interactions with parents, siblings, and others in or around the household;
- The child’s adjustment to his or her home, school, and community;
- The mental and physical health of parents, children, and others of all individuals involved in the child’s life (except that a disability alone won’t deny or restrict parenting time);
- The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent (except for protective steps in domestic violence cases)
- Each parent’s history of involvement with the child;
- The geographic distance between the parents when it comes to practically exercising parenting time;
- The ability of each parent to place the needs of the child ahead of his or her own needs.
Notice that none of those factors has to do with a person’s criminal history. The fact that you have a conviction for drug use from five years before the child was born won’t automatically work against you in your divorce or custody case. However, just because it isn’t listed specifically as one of the best interest factors, doesn’t mean your criminal history won’t come into play during your child custody battle.
Family Law Attorneys Can Make the Case for Indirect Effects of Criminal History on Your Child’s Best Interest
Colorado judges are directed to “make provisions for parenting time [with both parents] that the court finds are in the child’s best interests unless the court finds, after a hearing, that parenting time by the party would endanger the child’s physical health or significantly impair the child’s emotional development.” When one or both parents have a history of felony or misdemeanor convictions, that can sometimes provide family law attorneys the leverage they need to push for restricted allocation of parental responsibilities.
That’s because while no one factor specifically addresses a party’s criminal history, the facts surrounding a criminal conviction can often affect the factors the court considers. For example, an attorney could argue:
- Drug charges can show mental health problems that can affect the child’s health or well-being;
- Time in jail or prison can affect a parent’s history of involvement, a child’s adjustment to his or her current home situation, and the practical realities of exercising parenting time;
- Crimes of violence could be argued affect a parent’s ability to encourage a positive relationship with the other parent;
- Theft offenses could be argued to show a parent will put his or her needs before the child’s needs.
That’s why even though the conviction itself isn’t a factor, you should talk to your family law attorney about your criminal history early in the case. That way you can both prepare for how to respond to claims that your criminal past affects your ability to care for the child.
The Special Cases of Child Abuse, Sexual Assault, and Domestic Violence
While most criminal convictions won’t directly affect your child custody case, the Colorado legislature has made an exception for certain crimes that directly affect the child, or his or her parent. Colorado law says that when one party claims the other has committed child abuse or neglect, domestic violence resulting in conception of the child, or where the court has reason to believe those crimes occurred, it is required to take additional steps before allocating parental responsibility to the parent accused of those crimes:
- If the court finds that one party has committed child abuse or neglect, it will not allocate mutual decision-making if either the other party or an attorney for the child objects.
- If the court finds that a party has committed domestic violence, now or in the past, the court must find that the parties have the ability to cooperate in making decisions safely, protecting both the abused parent and the child.
- If the court finds that a party has committed sexual assault that resulted in the child’s conception, it must assume that it is not in the child’s best interest to allocate that party sole or split decision-making to that party. The court may also prohibit or limit parenting time with that parent.
In these cases, family court judges are also instructed not to hold protective behavior against a parent trying to escape threats or a history of abusive behavior. If one party claims that the other has been violent, the other won’t be able to say that the one claiming abuse kept the child from him or her without first disproving the abuse.
In Colorado family court, the burden of proof for these child-related crimes is lower (preponderance of the evidence) than it is in criminal court (beyond a reasonable doubt). That means even if you haven’t been convicted of a crime, you and your attorney will still need to prepare to defend against the allegations.
The reverse is also true. If there are pending charges for child abuse or neglect, domestic violence, or sexual assault, you should be sure your family law attorney and criminal defense attorney are working together to defend your rights. Things said in front of a family law judge could affect your criminal case, and pleading guilty to the wrong crime could affect your custody battle.
At Aviso Law, LLC, we are well-equipped to help you keep your criminal history from affecting your child custody case. With both family law and criminal defense attorneys on staff, we can help you defend your rights and your record, and make sure you can maintain a connection with your children in spite of your past convictions. Contact us today to schedule a consultation.