Is a Criminal Charge Considered for Child Custody in NJ?
New Jersey Criminal Cases can be used Against You in Child Custody Decisions
Going through a divorce can be extremely stressful for the spouses, especially when there are children involved. In fact, child custody is usually one of the most important issues in any divorce proceeding because the parents don’t want to lose the opportunity to raise their children and maintain a vital connection with them during their formative years. One factor that can affect the outcome of a child custody decision is an arrest, criminal charge, or conviction on your record. The unfortunate reality is that the other parent who is fighting for custody may be willing to say or do just about anything in these situations, and you should expect them to use your criminal record against you in the custody dispute. If you have a prior conviction for a criminal offense in NJ, or if you are currently facing criminal charges, you need to do everything possible to minimize the damage a criminal record might do to your child custody case. Each custody dispute is unique and involves particular facts and evidence that may be determinative when it comes to the ultimate outcome.
This means that a criminal conviction could very easily result in you being denied custody of your children. It also means that you need to speak with an experienced criminal defense lawyer immediately if you have been charged with a crime – because you do not want to end up with a conviction on your record, especially if you are going through a divorce and there will be a child custody decision at some point. Contact the attorneys at our Middlesex County law office for immediate assistance with your case. We offer free consultations 24/7, so please call (732) 659-9600 if you would like to speak with a lawyer who can help.
What Are the Consequences of a Criminal Charge or Conviction on Your Custody Rights in NJ?
The judge in your child custody case is likely to prioritize the best interests of the child when making a decision about whether one parent or both parents should be awarded custody. In the majority of cases, the judge will look to grant custody rights to both parents. If there are concerns about one of the parents, however, the judge may consider limiting that parent’s custody or visitation rights, or even stripping that parent of their custody rights entirely if the child’s safety and wellbeing would be put at risk by contact with the parent.
One of the biggest factors that will be evaluated by the judge is whether the parent whose custody rights are being challenged has a criminal record. This is because a parent with custody will have more than just a legal duty to provide for the child financially; they will also be expected to keep the child safe. The thinking is that a parent with a criminal conviction is less likely to be capable of ensuring the child’s physical safety, and a parent with a criminal history might even pose a direct safety risk to the child. Having a criminal record is going to be a factor that works against you at your child custody hearing, but the consequences can vary. The judge in the case will have a great deal of latitude and a wide range of options when they draft the final custody order. The options available to the judge may include:
- Granting sole custody to the other parent.
- Granting joint or split custody to both parents.
- Granting you conditional custody, as long as you attend psychological or anger management counseling, submit to random drug and alcohol testing, etc.
- Denying custody but allowing for visitation rights.
- Requiring a court-appointed monitor to be present during any visits with the child.
The exact influence of a criminal charge or conviction on your custody rights will depend, in large part, on the type and severity of charges, as well as whether the charges stemmed from an incident involving your child.
What Kinds of Criminal Cases are Considered for Child Custody in New Jersey?
Even if your criminal charges and/or conviction have absolutely nothing to do with your child or your divorce, they can still affect your child custody rights in New Jersey. Of course, certain criminal cases are more problematic than others when it comes to custody battles. After all, judges are human beings, and they are likely to perceive a person with a domestic violence or assault conviction as posing a greater threat to a young child’s safety than, say, a person with a prior conviction for shoplifting. That said, any criminal conviction on your record could have repercussions for you during a child custody dispute. Some examples of criminal cases that are particularly problematic in child custody matters include the following:
- Domestic Violence: Criminal charges stemming from an act of domestic violence could have a profound impact on your child custody dispute. This is likely to be true even if the conviction happened several years ago and did not involve your current spouse. Moreover, whether you were convicted of the underlying crime, or a civil restraining order was imposed against you for spousal abuse, the judge in your custody matter may not be inclined to grant you custody or allow unrestricted visitation rights under the circumstances. Generally speaking, family court judges will make their custody decisions out of an abundance of caution, which often means denying custody to anyone with a prior history of domestic violence.
- Assault: Violent crimes like aggravated assault and terroristic threats can lead to prison time in the immediate future, while the long-term effects can be even worse: loss of the custody of your child. The justification will be that your conviction for a felony-level assault offense could indicate that you have violent tendencies and that you would pose a risk to your child if they were allowed to live with you.
- DWI with Your Child: Drunk driving charges are ordinarily classified as traffic offenses, not criminal offenses, in NJ. However, when the DWI occurred with a minor present in the car, the charge is classified as a disorderly persons offense (i.e., a misdemeanor). A DWI with your child is likely to weigh heavily against you in a custody dispute because it is evidence that you have already placed your child’s life in danger.
- Drug Crimes: A charge and/or conviction for a drug-related offense such as cocaine possession or prescription drug distribution is likely to be a substantial factor in the judge’s custody decision. When a parent has a history of drug abuse or selling narcotics illegally, there could be concern that the child will be exposed to dangerous drugs in the home.
- Child Endangerment: Endangering the welfare of a child is a serious criminal offense in New Jersey that carries significant prison time for anyone convicted. Moreover, since this offense often involves abusing or neglecting a child, family court judges tend to take a previous conviction for child endangerment very seriously. If the criminal charges stem from an incident involving the child for whom custody is being determined, and if the child suffered serious or even life-threatening injuries, the court is not likely to be inclined to grant custody to the offender.
- Child Pornography or Sex Crimes: Possession or distribution of illicit photos of a minor is technically charged under the child endangerment statute in NJ. A conviction on a child pornography charge, or any other sex crime charge such as sexual assault or lewdness, is very likely to be interpreted by the judge as a threat to the child’s safety going forward. In fact, there is a presumption against granting custody to a parent who was previously convicted of sexual assault. Additionally, depending on the type of sex offense, it’s possible that the offender will be subject to Megan’s Law sex offender registration requirements that prohibit contact with minors. In the worst cases, the judge in your child custody hearing may have no choice but to grant full custody to the other parent and bar you from visitation without supervision.
These are the types of criminal charges that can present the greatest difficulty for you during your child custody hearing, but the truth is that a conviction for a lesser offense can still result in you losing custody. That’s because the judge could view your criminal record as strong evidence that you are unfit to raise your child. For these less serious criminal convictions, the judge may consider a number of relevant factors, such as the presence of multiple arrests or convictions on your record, how much time has passed since your conviction, and whether your child was one of the victims of your crimes.
Contact our Edison NJ Office to Speak with an Experienced Defense Lawyer about Protecting Your Child Custody Rights
For a parent who has been charged with a serious crime or who is facing a restraining order for domestic violence, it is crucial that you have a defense attorney to argue for your innocence. This is important not just to keep you out of jail or prison, but also to keep your record clear of a conviction. For a parent who has already been convicted of a crime and is currently in the middle of divorce proceedings, it may be necessary to seek counsel about a potential expungement of your criminal record from an attorney experienced with criminal matters. Contact our Edison, NJ law firm immediately for a free consultation and dedicated legal counsel. You can also contact us at (732) 659-9600.