That a parent has a restraining order or criminal record does not automatically end their custody rights. New Jersey recognizes the importance of the parent-child relationship and that people can make mistakes or commit crimes and still be good parents.
Parents who have or have had a restraining order against them or possess a criminal record need to explain how these facts have no relation to their ability to parent. Emphasizing that a child will be safe in that parent's custody is paramount.
For parents who believe the other parent's criminal history or other activity makes them a danger to their child, they need more than pointing to a criminal record. They need to show why a child won't be safe in the other parent's custody.
The Lento Family Law Team helps parents throughout New Jersey navigate child custody issues. We focus on what's in a child's best interests. If you have a criminal record, a restraining order, or other history of violence, we can help. You can call us or fill out our online form.
Criminal Record
A criminal record is not an absolute bar to custody. Courts will instead look at the circumstances, along with a parent's ability to care for their child, when making custody determinations. Paramount is that a child will be safe while in a parent's custody.
The type of offense matters. Crimes that involve violence, drugs, and sex will weigh more heavily than other offenses. In New Jersey, an individual convicted of a sexual act with a minor or sexual assault will generally not be granted custody or visitation. This includes situations where the child is the result of that assault. An individual has the burden of proving that:
- They are not a threat to the child
- Custody or visitation is in the child's best interests
In general, courts will weigh a criminal record against what's in a child's best interests and an individual's fitness to parent. When reviewing a criminal record, judges will consider:
- The nature of the offense
- The conviction
- When the crime occurred
- The frequency of criminal offenses
Domestic Violence
Domestic violence is not an automatic bar to child custody or visitation. Domestic violence means that the accused and the victim have some relationship, such as marriage and living in the same house.
Custody may be affected if the child is the victim of the violence or abuse. In this case, a parent has the burden of proving they're no longer a danger to their child. While courts do encourage parent-child relationships, that's secondary to what's in the child's best interests and safety.
That a parent has never been convicted of domestic violence does not mean domestic violence won't be part of a custody hearing. Testimony from the relevant parties, police reports, or the existence of a restraining order may all be used as evidence.
A judge will look at a variety of factors when one parent faces an accusation of domestic violence. Some of these factors are:
- Whether the incident was isolated or part of a larger pattern
- When the domestic violence occurred
- Who was the victim
With domestic violence, honesty is the best policy. False accusations of domestic violence may damage the accuser's custody or visitation. Courts may consider false accusations a sign a parent is unfit, unwilling to co-parent, or engaging in parental alienation.
For individuals wrongly accused of domestic violence, it's important to hire experienced legal counsel to help navigate the situation and build a case that disproves the accusations. Just as domestic violence can be difficult to prove, false accusations can be difficult to disprove.
Restraining Orders
Restraining Orders closely relate to domestic violence. Many of the same considerations apply. That someone has a restraining order against them, even if the other parent is the one who took out the restraining order, does not automatically change a custody agreement.
When custody may be affected is if evidence exists that a parent is a threat to a child or has threatened, attempted, or committed violence against a child. All other considerations are secondary to a child's safety.
In some cases, a judge may modify custody as part of a restraining order. Even if a parent loses custody or visitation due to a restraining order, they may still be responsible for paying child support.
A restraining order may affect aspects of custody. These adjustments can include drop-offs and pick-ups, which may now involve a neutral third party or parties, one parent not being allowed near the other parent's residence, or parents not being able to attend the same events, such as school activities or games.
For individuals who have a restraining order against them, it's important not to violate it. No matter how much someone may disagree with a restraining order, they should follow it and work with their attorney to resolve the issue. Violating a restraining order could result in a change of custody to the violator's detriment.
Marijuana
New Jersey allows adults 21 years of age or older to purchase and use marijuana. Marijuana use will not affect custody determinations unless:
- The parent is unfit
- The parent uses marijuana in the presence of the child
- For medical marijuana, the parent is in such poor health it would affect their ability to care for a child
Marijuana is similar to alcohol in that use alone will not affect either parent's custody. It's when that use rises to a level that negatively affects a parent's ability to care for a child that custody may be affected.
No Parent Is Perfect
Everyone makes mistakes or errors in judgment. Parents who have criminal records can be good parents. A criminal record alone does not bar a parent from having custody or visitation of their child.
Certain crimes, such as domestic violence or sexual assault, may impact custody because they raise the issue of whether a child will be safe with that parent. When courts make decisions about custody, a child's safety is a primary concern.
Parents with criminal records need to work with their attorneys to show why their past has no bearing on who they are as a parent. They should show how they've changed.
For parents who believe the other parent may be a danger to their child, they need to assemble a case beyond a criminal record. They need to show why a child's best interests are limited contact with that parent.
The Family Law Team at the Lento Law Firm appreciates how emotional custody disputes can be for all parties. We work with our clients to find resolutions that focus on children and their best interests. Call us or fill out our online form to learn more about how we can assist you.
