Once convicted, felons often lose the support of their significant other. Marriages end and relationships are damaged or destroyed. It’s more difficult when children are involved as there is often a custody battle with the felon and their partner each trying to gain custody.
This blog post will examine the question of whether or not a felon can get full custody of a child.
- Custody Factors
- Steps to Get Full Custody
- What to Remember While in Court
- Recommended Action
In a child custody case in which at least one parent is a felon, a judge will typically review a number of factors, including:
- Who the victim was
- Type of offense committed
- Age at which the conviction occurred
- How long ago the offense was committed
- Nature of the sentence
- Whether or not the convicted parent has multiple convictions
For a parent with a criminal history, the judge’s main concern is that the child isn’t placed where they are at risk of being harmed by either parent. If there was a conviction before the child was born, the judge may not consider it as heavily in his or her custody decision.
If a parent has been convicted of the same crime or a similar one in the past, the judge may be willing to grant that parent only supervised visitation. A repeat offender tends to end up in jail again and represents a threat of an unstable home environment.
More weight will be given to convictions for:
- Child abuse sexual assault
- Domestic violence
- Drug and alcohol abuse
These are offenses that are more likely to negatively impact a child. They represent difficulties with anger management and violence. They also indicate addiction problems that may reoccur in the future.
To determine what’s in the best interest of the child, a court will look at factors such as:
- The child’s age
- Specific needs
- The parent’s fitness and ability to take care of the child
- Any history of abuse or neglect
- Existing bond between parent and child
- Wishes of the child him or herself
The court is more likely to favor the parent who can provide the most stable environment for the child.
The parent can have sole physical custody of a child or both physical and legal custody. Sole physical custody means that a child lives exclusively with one parent. Sole legal custody means that one parent, usually the one with physical custody, retains the exclusive right to make decisions about the child’s health, education, and religious upbringing.
A parent with sole physical custody can share legal custody with the other parent who typically has visitation rights. In joint custody agreements, both parents typically share legal custody the child.
Steps to Get Full Custody
To gain sole physical and legal custody, a parent must demonstrate to the court that awarding such custody is in the best interest of the child due to factors such as:
- Existing relationship with the child
- Stability of the home of provided
- Inability of the other parent to meet child’s needs
- The other parent’s lack of involvement in the child’s life
- The other parent’s failure to financially support child
- The other parent’s violent behavior toward the other parent or the child
- The other parent’s substance abuse issues
The parent must demonstrate that not granting full custody would be harmful to a child in some way. Even with sole custody, the court will usually grant the child’s felon parent visitation rights unless it decides it would be harmful to the child.
In the courts in the 20th century, the tender years’ doctrine was typically followed. This doctrine states that mothers are more emotionally-suited to nurture their children than the father. Most states have now changed this in their family code legislation.
The best interest doctrine replaced the tender years’ doctrine. A parent who wants to achieve sole custody in the present must typically prove that living with the first parent would be detrimental to the child and that the other parent is unfit.
In most states, unwed mothers have sole custody from the time of birth. This is especially true when a father’s name does not appear on the child’s birth certificate. In such a case, the father has no rights, even to visitation, until he legally establishes his paternity.
If a paternity test is positive, the father must then petition the court for custody and visitation rights. Unless the child’s mother is unfit, few courts will take a child away from her if the parents were never married. The court would not be likely to award the father sole custody in this situation.
Courts are usually doubtful of the motives of any parent who wants sole custody. Excluding the other parent from a child’s life is drastic. It will be a challenge to gain full custody of a child during a custody battle.
What to Remember While in Court
Any parent who wants full custody should remember the following important factors in the court:
Courtroom Appearance and Conduct
The judge may determine a parent’s fitness for full custody based on the parent’s style of dress and actions in court. It’s important to avoid interruptions and maintain composure while avoiding angry outbursts.
Best Interest of the Child
A parent should be ready to state clear reasons why a joint custody would not be in the child’s best interest. This may be due to the other parent’s issues with substance abuse or a history of leaving the child home alone.
Preparation includes factors such as whether the parent has an attorney and specific documentation to support his or her position for full custody. The more prepared a person is to prove that what they say is true, the better chance they have at winning.
A father who wants full custody must acknowledge paternity and demonstrate that paternity legally.
Father’s Relationship with Child
The court will inquire about a parent’s relationship with a child before awarding full custody rights. A parent must be ready to answer questions regarding the relationship with the child and past visitation.
Other Things to Keep in Mind
A court will be unlikely to alter a child custody arrangement that appears to be successful. A parent must be prepared to present evidence that a change in circumstances warrants a complete change in custody.
Any parent who wants full custody rights of a child needs to remember that the court will often give frequent visitation rights to the other parent as a relationship with both parents is considered to be in the child’s best interest.
When meeting with an attorney to discuss custody, it’s important for felons to be honest about their situation. Felons need to be able to demonstrate the positive steps they have taken in beginning to live an honest life. They must be able to show how they have dealt with their circumstances by completing a re-entry program such as substance abuse treatment.
They can also show they are stable by getting a job, improving their financial situation, and having their record expunged. They can maintain a steady job to demonstrate their ability to provide for their child if they are granted full custody.
Felons who want to gain full custody of a child need to realize the challenge this presents and be prepared to be patient and persistent through the process. Remember to turn to family, friends, and others for support.
Get the best legal advice possible and follow the suggestions, providing all necessary documentation. Having full custody will help felons realize they aren’t defined by their crime and can live an honest life.
What do you think about this blog post? Have you or someone you know tried to get full custody of a child as a felon? What was that like for him or her, and what happened? Please tell us in the comments below.