Felony Conviction & Child Custody Rights
Updated June 13, 2017
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As of 2000, an estimated 6 percent of United States adults were convicted felons, according to author Joan Petersilia. If current trends persist, one in every 15 adults, or 6.6 percent, will serve time in prison, according to Criminal Records. Statutes and jurisprudence practices vary from state to state, but depending on the state and the nature of the felony, many parents who are convicted of felonies retain their child custody rights.
Denial of Custody Rights
Convictions of certain crimes cause courts to curtail or terminate parental custody rights. A parent convicted of child abuse, child endangerment or a sexually related felony involving a child probably will lose custodial rights, and probably will have limitations placed on visitation. Likewise, violent crimes such as murder, and particularly murder of the child’s other parent, mandate termination of parental custody rights; courts use these felonies to establish that the parent is unfit. Depending on the nature of the felony, the length of time since the felony, the occurrence of additional felonies or criminal activity, and other mitigating matters, the courts can and often do limit custody and visitation.
Custody with a Felony
Custody is the right of a parent to participate in important child-rearing decisions such as residence, health care, education and religious training. Courts strive to provide for the welfare and best interests of the child; they will uphold a parent’s rights to participate in the child’s life when the felony did not involve action that caused direct harm to the child. For example, a parent convicted of embezzlement or tax fraud might retain full custody of her child once she has served her sentence.
Physical custody refers to the primary residence where the child resides. A parent with a felony who is married to the custodial parent can continue to live with the child, except in circumstances where the felony establishes the parent poses a risk to the welfare of the child, such as child abuse or child molestation. In the case of unwed or divorced parents, the likelihood of obtaining physical custody depends on assorted factors. As is the case with custody, the court exercises discretion and considers factors such as the quality and availability of an alternative custodial parent, the nature of the felony, and recommendations of the court-appointed guardian.
Discretion of the Court
Courts weigh the rights of the child against the rights of the parent, and they give considerable weight to any felony conviction. If the parent maintains a clean record and can demonstrate he has reformed, he has a much better chance of retaining or obtaining custody rights. Still, if the parent is divorced or unwed and the other parent petitions the court to abridge the felonious parent’s rights, the parent with a felony is at a distinct disadvantage in court.
When parents with felonies are denied custody, they still can retain rights to visit with their child. Again, depending on the nature of the felony, visitation might approach 50 percent contact or might be severely curtailed, requiring the presence of a court approved supervisor.
No matter what happens with their custody and visitation rights, parents with felonies still have legal responsibilities. They generally have to pay child support and contribute to medical and health expenses.
- Child Welfare: The Rights of Presumed (Putative) Fathers: Summary of State Laws
- Criminal Records: Criminal Offenders Statistics
- Los Angeles Lawyer: Criminal Histories and Parental Custody and Visitation Rights
- State Lawyers: Child Custody & Visitation
- "When Prisoners Come Home: Parole and Prisoner Reentry"; Joan Petersilia; 2009
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