Your Past Could Come Back To Haunt You In Custody and Visitation Disputes
A criminal history can impact almost every aspect of your life – employment, housing, driving, finances – so there is no surprise that a criminal record affects divorce as well. Depending on the nature of the offense, a conviction can play a significant role in a divorce judge's decision-making, especially when child custody and visitation issues are part of the divorce.
Crimes involving drugs, alcohol, violence, or child abuse that reflect poor judgment and ability to be a responsible parent can and will be used in determining the terms of the final divorce decree.
Minor Crimes Will Probably Have Little Impact
There are hundreds of criminal offenses under Colorado law. Just as not all have equal legal penalties and consequences, not all will negatively affect divorce. If you have non-violent misdemeanor convictions in your past for shoplifting, for instance, the chances are that your criminal record will not affect your divorce proceedings. This is especially true if the convictions occurred many years ago.
But when your criminal record contains convictions that call into question the safety and well-being of a child or children when they are in your care, you should be prepared for your criminal record to affect divorce outcomes.
A Criminal Record and The "Best Interests of the Child"
When the fate and future of children are involved in a divorce proceeding, a judge must decide how to allocate parenting time and parental responsibility and decision making. They will base their decision on one thing and one thing only: what they deem to be in the child's best interests.
In determining the child's best interests in their parent's divorce, El Paso County judges will consider numerous factors listed in Colo. Rev. Stat. § 14-10-124, including:
- Each parents' wishes;
- Child's wishes;
- Child's interactions and relationships with their parents, sisters, brothers, and others who are important to the child;
- Child's adjustment to home, school, and community;
- The physical and mental health of all individuals involved;
- Parents' ability to encourage the sharing of love, affection, and contact between the child and the other parent;
- Whether the past pattern of parental involvement with the child reflects a consistent level of values, time commitment, and mutual support;
- The physical distance between the parents;
- Ability of each parent to place the child's needs ahead of their own needs;
- And any other factors the judge deems relevant.
Convictions for Domestic Violence, Child Abuse, or Sexual Assault
In addition to the proceeding factors, Colo. Rev. Stat. § 14-10-124 contains specific provisions for criminal records that involve domestic violence, child abuse, or sexual assault:
If an El Paso County judge finds that one of the parents is guilty of child abuse or neglect, the child's best interests would not be served by allocating mutual decision-making.
Likewise, suppose the judge finds that one of the parents is guilty of domestic violence, whether the occurrence is from the current relationship or the past. In that case, the conviction will likely affect divorce and child custody. The judge will find that the child's interests are best served by giving the non-offending parent decision-making responsibility over any objection from the offending parent. However, if the court finds that the parents can cooperate in safely making decisions in the best interests of the child, the judge may grant responsibility for decision-making to both parents.
When one parent's criminal record reflects convictions for child abuse or neglect, domestic violence, or sexual assault (or if there are pending charges for these offenses), a judge may impose conditions on parenting time to ensure the safety of the child and the abused party. These can include:
- Restraining orders;
- Limiting contact between the parents to that which the court deems safe and minimizes unnecessary communication between the parties;
- Requiring the exchange of the child for parenting time to occur in a protected setting;
- Supervised parenting time; and
- Restricting overnight parenting time.
Drug Offenses or DUI
Parents can also expect convictions for a drug offense or driving under the influence on their criminal record to affect divorce proceedings, especially as they are relevant to evaluating a child's best interests. This conviction may indicate that the parent has a substance abuse problem, which calls into question their ability to provide for the child's needs or keep them in a safe environment. This is especially true if the conviction occurred after the child was born or if it is a second or subsequent offense.
Driving under the influence with children in the car may be interpreted by an El Paso County judge as a direct threat to the safety of the children. It may cast doubt on the driver's ability to ensure the well-being and health of children, and the driver may also face additional criminal charges for child abuse or child endangerment.
In addition, judges who see a prior drug crime or DUI conviction on one parent's criminal record may require that parent to submit to regular drug or alcohol testing or treatment as a condition of their parenting time and decision-making responsibilities. Failing to abide by these requirements could threaten the rights of the parent to have any say in the child's upbringing, or a judge could impose limitations on parenting time, such as requiring supervision during all visits.
And, if a parent is convicted of a drug crime or DUI after the entry of the final divorce decree, the other parent can petition the court to revisit and modify the existing parenting arrangements to reflect the child's best interests.
More Questions About How A Criminal Record Affects Divorce?
If you're a divorced or divorcing Colorado parent and have a criminal record involving violence or substance abuse, your future and your relationship with your children is at stake. You need the guidance and support of an experienced Colorado Springs attorney specializing in both divorce and criminal law.