July 25, 2014

Do Criminal Convictions Affect Child Custody in a Divorce?

Divorcing Pennsylvania mothers and fathers who have been arrested and convicted of a crime naturally question whether a criminal conviction will affect their ability to have custody of their children after the divorce.

A criminal conviction or record can potentially affect the custody outcome, but not in every case. When family law court judges make decisions about the child custody arrangement, they measure all decisions against what is in the best interests of the child and how the child will be affected.

Family law courts in Pennsylvania look at factors such as:

    • The type of criminal offense and the seriousness of the crime committed
    • Victim in the criminal offense
    • Age at time of criminal conviction
    • The sentence received
    • Whether there are multiple convictions

If a parent’s offenses involved assault or domestic violence, the court will definitely take that into account. They will want to know if the convicted parent has addressed anger management issues, and how long ago the conviction was. The parent will likely benefit from solid references and proof that they are responsible and a good parent, with anger issues under control.

In some states there can be a domestic violence presumption. This means that if a divorcing spouse can establish that the spouse with the criminal record has a history of domestic violence, the court will assume on a legal basis that that spouse will potentially be a bad parent because of the abusive or criminal history. The family law court may likely only allow limited or supervised custody of any involved child.

Crimes of Extreme Violence

If a parent has been convicted of murder, of the other parent, the law will not allow the child to visit the parent until they are old enough to make this decision on their own.

Theft or Prostitution

The judge will look at convictions such as these and question the parent’s ability to serve as a positive role model for the child. In such a situation, the judge may not be willing to allow the child to live with the parent in question, but would perhaps be willing to allow visitation without supervision. However, if the theft or prostitution or other criminal activity is ongoing, the judge would likely limit or prohibit visitation altogether.


If the family law court learns that there is a parent with a drug conviction, most likely drugs tests on that parent will be ordered. For example, a hair follicle drug test may be ordered. This test reveals evidence of drug use in the past several months. If the test is positive for drug use, drug use and a prior drug conviction will likely play a significant role in the custody outcome.

Age of the Conviction

If the parent was convicted of a DWI or criminal mischief some 15 years ago, the family court will take the age of the conviction into account. The parent will need to introduce evidence that shows that it was simply an isolated incident. The family law court can then shift its focus from the past to present day best interest of the child.

Finding Out If a Parent Has a Criminal Conviction on Record

If you suspect the mother or father of having a criminal record but you do not know for certain, there are ways to find out. You can go online and generally find a company that will, for a small fee, search nationwide databases online to see if the person in question has a record. You can also go to the county records office where you think the arrest and conviction occurred and ask to see the records for this individual.

If, however, the person’s criminal record has been sealed, you may not be able to access the record through either the county court records office or through online means.

Concerned About a Criminal Record Affecting Custody? Family Law Attorney in Media, PA: 610-563-2225

The Law Offices of John E. Kusturiss, Jr., in Media, Pennsylvania, has a combined 30-plus years experience helping clients chart a path through difficult family law and criminal defense matters. We are prepared to help protect your rights at every stage of a custody matter.

Discuss your concerns and get your questions about how a criminal record or criminal conviction can affect the outcome of a child custody issue in a confidential consultation with an experienced family law attorney.  Please contact the 610-563-2225 or email us.

We represent clients going through divorce and other family law matters, and we also handle cases involving personal injury and criminal defense throughout Springfield, Chester, Upper Darby, Ridley Park, Newtown Square, and Havertown, PA.