Can You Get Child Custody If You Have a Criminal Record?

One of the most impactful moments in a person’s life is when they become a parent; often, the presence of children encourages criminals to walk away from malicious activity. However, adults with criminal histories have additional steps to get through if they want custody of their children. The United States court system considers all aspects of a case before granting (or restricting) parental custody.

How does a criminal record affect child custody? A criminal record is devastating to any custody hearing since a criminal conviction may strip rights away from a parent. Criminal records impact child custody directly, but most judges consider multiple factors before placing a ruling. If you have a criminal record and are fighting for custody—there are ways to navigate the riptide; read on to learn how a criminal record will affect your child’s custody and determine if you need assistance.

what is child custody

What Is Child Custody?

Once a child is born, their parents have legally binding obligations and rights put on them. “Custody” refers to the guardianship of a minor; two classifications determine the minor’s day-to-day life. Those two classifications are physical and legal custody—physical custody regards who the child lives with and parental planning. Legal custody, on the other hand, regards who makes the important choices for their child, including:

  • Health care, childcare, doctors, medical care, mental health counseling
  • Religious activities, welfare, therapy, community
  • Education, private or public schools, trade schools
  • Sports, extracurricular activities, hobbies, exercise
  • Travel, living arrangements, vacations, summer camp

The courts must review and verify both types of custody to determine the child’s best interests. To provide flexibility for both guardians, the court will consider each type of custody and weigh potential joint or solo merits. If the court rules for joint custody, both guardians have responsibilities and rights to see the child. However, if the court rules sole custody, that guardian makes all the choices regarding that custody. For this reason, it is possible to have joint physical custody and sole legal custody.

Additionally, the court may choose an arrangement for parenting time. The goal of having a court give you these arrangement orders is that it guarantees time with your child; barring those situations where total child custody is lost. There are generally four types:

  • Scheduled: a set parental time plan, often trading holidays and special event days. Some guardians may go through the court to make amendments when necessary.
  • Reasonable: an open-ended option meant for parents who communicate well. These orders have little court overreach, so ensure you want it before filing.
  • Supervised visitation: meeting with the other parent, overseen by you or the court. Some criminal histories may automatically trigger this parental time order.
  • No visitation: ordered when seeing the other parent may cause emotional or physical damage to the child.

Child custody courts have broad discretion when evaluating cases; judges can look at any factor they believe will impact the child’s best interest. Because the judge looks for best interests, court records often come into custody discussions. Even expunged criminal records are reviewed and considered in every custody case.

How Does Criminal History Affect Custody?

Criminal history is one of the largest overarching elements of children’s custody. If the parents cannot provide an environment where the child’s best interests take priority, the court will. Subsequently, particular crimes remove parental rights entirely:

  • Domestic violence: the courts assume the child may be in danger in these cases, so many states have a “domestic violence presumption” that removes guardianship.
  • Sexual assault: some states also carry “sexual assault presumption” clauses. These remove the rights of the criminal, granting the victim orders of protection.
  • Violent crimes: crimes done with a deadly weapon, assault, harassment, kidnapping, robbery, murder, or that include drugs or alcohol.

Can a misdemeanor affect child custody? Yes, but other elements are looked at, too. Regarding the level of seriousness, a crime can be a misdemeanor or a felony—felony records are the more serious. Being convicted of a misdemeanor isn’t great, but it’s not enough to prove you unfit. However, this can change if the person who committed the crime did it with violence, habitual criminal activity, or because of who the victim was.

How does a felony affect child custody? It depends on the circumstances of the crime. Cases involving violence do not fair well for custody, nor crimes involving drugs. The judge will consider the entire convicted case, then judge if you can be a good parent. If you have a non-violent felony conviction, you can still prove yourself the best guardian for your child.

What are the Offenses that Affect Child Custody?

If it isn’t clear, having a criminal history isn’t enough to say you are an unfit parent. Offenses that happened way in the past won’t be as pertinent as current ones; further, unless there is a pattern of established habitual activity, infractions and single misdemeanors are not usually enough to sway opinion.

Note: Courts will not determine custody based on allegations or charges—only convictions; thus, pending criminal charges and child custody may overlap during trial proceedings.

Can a convicted felon have custody of a child? Yes, if their conviction happened long ago or if they committed a non-violent felony. Felonies come in two types, one non-violent and the other violent. Being convicted of a violent felony often strips parental rights away—while non-violent felonies are likely to receive more custody. Non-violent felonies usually include fraud, embezzlement, tax crimes, bribery, and gambling; you’ll need to review local laws for more information in your area.

How Do Criminal Records of Relatives Affect Child Custody?

The criminal records of those around you will factor into the custody ruling of any court; especially in particularly aggressive cases between the parties. Guardians with a criminal history must face allegations head-on since the judge considers every involved person’s history before ruling. Judges will consider all activity because habitual criminal activity is not in the child’s best interest. Despite this, it is better to confront past mistakes rather than ignore or hide them through an expungement. 


Restoring custody rights after conviction can be difficult but possible. Take steps to better yourself before going into the custody hearing to make the best case for yourself. Complete drug or alcohol treatment or an anger management course, and you’ll position the narrative in your favor. If the conviction happened long ago, check out your criminal records—you’ll learn where you sit regarding your parental rights.