In New Jersey, when a couple splits, whether they are married or not, but have a child between them, there may be a dispute about who gets custody of the child. These disputes often lead to a court proceeding. When a child custody dispute is brought before a New Jersey family court, a judge will determine custody and grant an order on the same. Custody can be allotted in different ways – one parent could be granted temporary or sole custody or else the court could grant joint or split custody among the parents.
When determining child custody, there are a number of factors the court must consider, and these factors inform the judge on what is best for the child, not what is best for the parents. Some factors judges consider include:
- physical safety of the child;
- fitness of the parent; and/or
- propensities of a parent.
When a parent has a criminal record, it will be considered in light of the above factors. Thus, a criminal record has the potential to significantly and negatively impact a parent's right to custody of a child.
What factors are considered in New Jersey when a parent's criminal record is considered for child custody cases?
A criminal record on its own is typically not enough for the judge to reduce or revoke child custody rights. The judge will look at it from multiple angles, including the following considerations:
- the nature of the offense(s)
- the frequency of crimes
- the victim(s) of the offense(s)
- how long it has been since the offense(s) happened
- the sentence(s) for the conviction(s).
The point to take away from this is that the court doesn't just see the criminal record but wants to see the sum of it or all aspects related to the criminal record – meaning it looks to see if there is a pattern of criminal activity or if the parent has taken steps to refrain from criminal activity and improve his or her life or at least learn from past mistakes.
Type of Crimes
The court will weigh more heavily on violent crimes, drug-related crimes, or sex crimes.
Violent crimes can indicate a parent has a history of anger management issues and may be prone to violence. If the court worries a parent may have a tendency to act violently, then it could assume that the same parent may put a child at risk. The court may order anger management classes. Examples of violent crimes include:
- domestic violence
- child abuse
- spousal abuse, including assault, battery, and stalking crimes
- kidnapping.
Drug-related crimes can pose a problem, too. Drugs are a dangerous business, not only to the health of the person consuming the drugs but culturally. Violence is often a part of drug culture. Plus, there may be the chance drugs are in the home and that can expose the child to the drug. The judge may order the parent to take a drug test unless he or she can prove he or she has been clean for some time. Examples of drug-related crimes include:
- possession
- possession with intent to distribute
- acquiring a controlled substance by fraud
- delivery of a controlled substance
- drug conspiracy
- drug paraphernalia
- drug trafficking
- misbranding a controlled substance
- prescription drug charges
- smuggling and importation of drugs.
Sex crimes are probably the most serious of all the offenses and pose the greatest risk. Examples of sex crimes include:
- child pornography
- child molestation
- date rape
- incest
- indecent exposure and lewdness
- internet sex crimes
- rape
- sexual abuse
- sexual assault.
According to NJ Rev Stat §9:2-4.1:
a person convicted of sexual assault under N.J.S.2C:14-2 shall not be awarded the custody of or visitation rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded.
The same statute states that if custody is granted, there will be a waiting period of 10 days so that the other parent can appeal the order or judgment.
Frequency of Crimes
The court will look not only at the type of crime but how frequently the crime(s) was committed, including the type of sentence a parent received. Was the parent convicted of drinking and driving more than two times within the last ten years? Was the parent convicted of more than one drug crime within the last year?
If a parent has multiple convictions and lengthy sentences, then the court may fear the parent has an inability to follow orders and will not follow orders now, too. The less frequent the crime, however, means the better chances a court will acknowledge a parent's right to custody. For example, if a parent was convicted of assault once – maybe it was a fight at a baseball game – and it was a completely isolated event, then the court will take that into consideration.
Victims of the Crimes
The court will also consider who the victims of the crimes are – and usually, there is always a victim to a crime. For instance, victims of shoplifters are the stores. The victim of assault could be a family member or a stranger. The court will consider who the victim is. Of course, the closer to home the victim is, the more problematic it becomes to grant a parent custody.
If the victim is the parent's child, regardless of whether the harm was physical or emotional, the court is more likely to limit custody or reduce it to supervised visitation. The worry is that if the parent harmed the child in the past, there is a chance the same parent will do so in the future. If the harm involved sexual assault or a life-threatening injury, then parental rights – both physical and legal custody – could be terminated.
Age of the Crimes
How long ago were the crimes committed? A crime committed yesterday will be worth a lot more in its weight than a crime committed ten years ago. When a person was convicted years ago and is able to show he or she has changed and is now a responsible citizen, the court will take that into consideration. Likewise, if the crime occurred a month ago – especially if it was a crime showing dangerous or reckless behavior – then the court will be more prone to limit custody to visitation.
Contact an Experienced New Jersey Family Law Lawyer Today
As you can see, a criminal record can affect a parent's ability to have a custody order granted in his or her favor.
Joseph D. Lento, a New Jersey attorney with close to 20 years' experience navigating family court matters, represents clients in both criminal and family law. His legal practice provides the insight necessary to move compassionately and smartly forward in both criminal and child custody cases. He understands the stakes and wants to ensure you have the best chance at building a strong relationship with your child. Contact the Lento Law Firm today to schedule a consultation.
