Past Crimes and Child Custody - What Matters and What Doesn't / by Cassandra Hearn

California judges will make custody decisions based on what is in a child's best interest.  There is a long list of factors of what a judge will take into consideration.  These factors provide a judge with a lot of discretion, as the factors are at least somewhat subjective.  The judge will take many issues into consideration, including a parent's past.  If that past includes criminal convictions, these past indiscretions may weigh in to the judge's decision to award or take away child custody.

A good deal of whether the past crimes will matter during a child custody determination will be determined by the type of crime committed.  California Family Code 3011 speaks directly to several types of crimes in the context of a child custody case.  The statute starts out by stating in addition to the factors listed in 3021, a judge will consider the child's health, safety, and welfare.  Subsection (b) of the statute states that the court shall consider "any history of abuse by one parent" against any child he or she is related to, or with whom he or she had a caretaking relationship, the other parent, or a person with whom the parent seeking custody has a romantic relationship.  Subsection (d) speaks to a parent's habitual and illegal use of drugs or alcohol.  A judge must consider a parent's history of domestic violence, or drug and alcohol abuse.  In both of these instances, corroborating evidence of a parent's history must be presented at trial, and evidence about a parent's prior criminal conviction is persuasive.  Family Code 3044 also provides that if a court determines a person seeking custody has perpetrated domestic violence on the children or the other parent in the last five years, there is a rebuttable presumption that parent will not be awarded custody.  Section 3030 further provides that no person shall be granted custody of, or unsupervised visitation with, a child if that person is required to register as a sex offender or has been convicted of first degree murder, unless the court makes written findings that there is no significant danger to the child.  The same section also provides that a court shall not allow custody or visitation between a rapist and a child who was conceived as a result of the rape.

The California legislature has been very clear that it is not in the best interest of children to be exposed to drugs, violence, and sex offenses.  Other types of crimes can be less relevant, and this is especially true if the crime was committed a long time ago.  For example, while a DUI is highly relevant and crucial to a case if it was committed recently, a ten year old conviction with no criminal activity since that time is less likely to persuade a court that the parent is unfit or otherwise dangerous.

Child custody is a complicated issue with many relevant inquiries.  Contact us today at (619) 800-0384 and let us talk to you about your children and how to keep them safe.