How Does the Court Consider Criminal History When Deciding Custody?
Criminal history could be a factor in a child custody case.
Criminal convictions affect child custody cases in basically two ways. A criminal conviction, especially a recent, violent criminal conviction, could affect several of the Holley factors which courts use to determine the best interests of a child. That is especially true if a family member was a crime victim or witness. Furthermore, any criminal conviction, violent or non-violent, is usually a crime of moral turpitude. A prior CMT conviction, no matter how old it is, undermines witness credibility in civil cases.
However, a criminal conviction does not prevent you from stating your case in court or even filing a change-of-custody petition. Moreover, the requested custody arrangement could still be in the best interests of the child. So, regardless of your past, you should always work with a Fort Worth family law attorney who, like you, does not give up easily. To spare children from unnecessary trauma, attorneys usually settle custody, visitation, and other disputes out of court. These resolutions are usually the most cost-effective and longest-lasting solutions in these situations.
Violent Crimes
We mentioned the likely effect on a prior violent criminal conviction above. Some Holley factors most likely to be affected are:
- Current and Future Physical or Emotional Danger: This one is obviously the biggest one. If a person has been violent in the past, it’s more likely than not that s/he will be violent again. That’s assuming a disability, like a substance abuse problem, didn’t substantially cause this violence. More on that below.
- Parental Fitness: The best interests of the children often focus on the abilities, and preferences of the parents. People who use violence as a problem-solving tool have questionable parenting skills. People with self-control issues also have questionable parenting skills.
- Stability: This broad factor could apply to almost anything, including the potential for future violence. Usually, this factor applies in this area if the violent criminal conviction was more than about 10 years old and did not directly affect anyone who is living in the house at the current time.
Some listed mitigating Holley factors could also apply, such as an excuse for the parent’s acts or omissions. If a substance abuse, anger management, or other disability caused or significantly contributed to the violent behavior, and the parent has overcome that disability, the prior violent crime conviction may be an asset instead of a liability.
At one time or another, most of us must overcome addictions and other disabilities. A parent who has gone down this road before is well-positioned to help a child with an addiction or other issue. This argument is particularly effective in many child custody modification proceedings, especially if the parent “did his time” without much complaining.
Furthermore, and somewhat more fundamentally, everyone likes a good comeback story. That includes Tarrant County family law judges.
CMTs
By the book, a nonviolent CMT is any criminal offense that involves fraud or dishonesty. That label could apply to practically all nonviolent offenses, especially theft and related infractions.
All parents have credibility issues, especially when they testify about prior events. Our brains are not video cameras. We all remember things selectively. Parents with CMT convictions are even less credible than most other parents, which is saying quite a bit.
Furthermore, CMTs rarely involve disabilities. Most people steal because they want to steal, not because alcohol has impaired their judgment.
So, in these cases, a Fort Worth family law attorney often encourages a parent not to take the stand during the trial. Jurors might focus on the CMT conviction, no matter how old it is, as opposed to what’s truly in the best interests of the child.
Incidentally, procedure is important. A “bad” parent could still get custody of a child if the other parent is worse.
Count on a Dedicated Tarrant County Child Custody Lawyer
Criminal convictions do not derail custody cases, at least in most situations. For a confidential consultation with an experienced family law attorney in Fort Worth, contact the Law Office of Kyle Whittaker. We routinely handle matters in Dallas County and nearby jurisdictions.