How Do Criminal Charges Affect My Child Custody Case in Louisiana?
A parent with a record of criminal charges will have a more difficult time obtaining custody of their children. However, it is not impossible to win child custody with a criminal history in Louisiana.
A judge will consider all factors of the charges when determining who the most fit parent is and what is in the best interest of the child. Typically, if the charges are old and did not involve a violent act that would put a child in danger, a judge will overlook such charges. However, if the charges are violent and affect the person’s ability to be a fit parent or affect the child, then it will be extremely difficult to gain custody of a child.
The best way to have criminal charges overlooked is to show rehabilitation for the crimes and to show no repeated offenses.
How a Judge Makes a Custody Decision in Louisiana?
In Louisiana, under LA C.C. Section 131, a judge will always make a custody determination by considering what is in the best interest of the child. Usually, a judge will follow the parent’s prior custody agreement, unless:
- There is a history of criminal activity, specifically family violence or domestic abuse
- The arrangement is not in the best interest of the child
When parents do not have a prior agreement, the custody decision is fully in the hands of the court, and they will consider the following factors:
- Community
- Criminal activity
- Emotional ties
- Family violence and abuse history
- History of substance abuse
- History of violence
- Mental health
- Moral fitness of the parents
- Parent stability
- Previous arrangements
Criminal convictions and charges will always be considered when determining child custody. However, they will not always play a significant role in the final outcome of the child custody battle if the judge decides that it is not against the best interest of the child.
How Criminal Charges Impact Child Custody?
A criminal conviction will not always bar a parent from gaining custody of their child. Older criminal charges with no repeat offenses typically show that the person has made an effort to refrain from illegal activities.
Smaller charges like speeding tickets, trespassing, and even property damage may have little to no impact on the child custody case because they are not sought to be violent crimes, nor do they involve drug use.
A history with multiple convictions like drug possession or multiple DUI’s will be highly considered because they are an indication of addictive habits and also habits that would endanger a child’s safety.
When going through a child custody procedure, the other parent will almost always use criminal convictions as evidence to “impeach the credibility” of the guilty party to show they are unfit to be a parent or bring doubt on their character. The best way to avoid issues is to be upfront about all charges and show that reform measures have or will be taken to overcome the charges.
Family Violence and Abuse Criminal Charges
Family violence crimes and domestic abuse charges are the most relevant to a judge when deciding custody. Louisiana is one of many states that has a domestic violence presumption. The domestic violence presumption under LA C.C. Section 364, states “that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children.”
Louisiana law under section 364 does provide cases where the presumption can be overcome and that includes:
- Showing evidence that the convicted party has gone through court-monitored domestic abuse intervention
- Refraining from alcohol abuse and illegal drug use as defined in LA RS Section 964
- Showing it is in the child’s best interest to be placed with this parent
If both parents have a history of family violence or criminal abuse charges, custody will solely be awarded to the one parent who shows they are not likely to commit the same type of crime in the future.
Generally, a judge will assume that a parent who has a history of domestic abuse or family violence should not be awarded sole or joint custody unless there are extreme extenuating circumstances.
Charges vs. Convictions and Expungement
There is a distinction between being accused and being convicted of a crime. A charge by itself does not establish that a person committed a crime. If a parent is charged during a child custody dispute, the defendant’s lawyer may argue that the charge should not be used as proof of the parent’s character because no conviction has been obtained.
A charge is likely to be given less weight in court than a conviction. The court may, however, consider it depending on the nature of the charge, its severity, and its significance to child custody cases.
Having your criminal record expunged does not keep your case sealed from law enforcement agents or court officials. Your entire criminal record will be accessible to the judge in your child custody case. Rather than attempting to avoid the question through an expungement, it is preferable to explain to the judge making the child custody decision why you are a decent parent despite your criminal history.
Louisiana Custody Attorney
As stated, a judge will determine all custody cases with the child’s best interests in mind. There are ways to provide evidence to the court that you are the most fit parent or ways to bring evidence showing the other party will not be in the child’s best interest.
Criminal charges and convictions will not automatically prevent you from gaining sole or joint custody. An experienced family law attorney in Louisiana can help you understand the laws and what you need to provide the court to show that you deserve custody of your children.
If you have any questions regarding your criminal history and how it will impact your custody case, reach out to one of our New Orleans family law attorneys at Betsy A. Fischer, LLC. Please call our law offices at (504) 384-7599 or fill-out our online form today.