Can You Use Your Spouse's Criminal Record As A Way To Gain Custody?

Posted on: 7 April 2016


If you're in the process of divorcing your child's other parent, you may be worried about how this temporary upheaval will affect your child's psyche in the long term. You may desire to keep his or her life as close to the old "normal" as possible by maintaining primary physical and legal custody in exchange for child support from your ex-spouse. However, if your ex-spouse chooses to fight you for joint custody, you may find yourself facing a lengthy court battle. Read on to learn more about the factors considered by the court when awarding custody, as well as how your ex-spouse's criminal record (or even your act of raising the issue) could impact your custody dispute.

What will the court consider when granting custody to you or your ex-spouse? 

While previous generations often saw a custody split that assigned primary custody to the mother, granting the father a few days' visitation every couple of weeks, modern custody arrangements are often split on an equal or nearly equal basis. Children may spend one week with one parent and the next week with the other, or in other cases may spend Sunday through Wednesday with one parent and Thursday through Saturday with the other. This allows parents who earn similar incomes to avoid child support by sharing expenses incurred while the children are in their care, while also ensuring children can bond with each parent.

However, the paramount interest of the court in determining custody is the best interests of the child. For example, if one parent regularly works long hours while the other works only part-time, the court may deem it in the child's best interest to spend most of his or her time with the parent who has greater availability and will rely less on outside childcare. Courts are also reluctant to grant custody -- and may order only supervised visitation or no visitation at all -- to parents who demonstrate substance abuse issues, physical or verbal abuse to family members, or a criminal history.

What will happen if you raise the issue of an ex-spouse's prior criminal conviction?

Criminal histories are usually evaluated by the court on a case-by-case basis. A conviction for DUI a decade ago will be treated much differently than a charge of felony domestic abuse. If your ex-spouse has a conviction that involves physical battery or dealing illegal drugs, this alone may be enough to grant you full custody. Depending upon the recency of the charges and the evidence that your ex-spouse has changed his or her ways, the court may also restrict visitation.

However, bringing up a minor criminal conviction from years in the past in an effort to skew custody determinations may not be positively viewed by the court. You'll want to consult with your attorney to determine whether the risk of appearing vindictive or petty is offset by the potential to gain custody of your child. For more information, contact Medeiros & Associates or a similar firm.