Does Having a Criminal Record Affect Divorce in Massachusetts?

by Wayne Thomas
A judge must balance several factors when determining what is in the best interest of a child.

A judge must balance several factors when determining what is in the best interest of a child.

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It is well established that the divorce process gets highly personal in nature. In Massachusetts, the degree to which the conduct of a spouse can affect a custody award depends on many factors, and goes beyond whether or not a parent has a criminal conviction. Certain serious felonies and domestic violence weigh heavily against awarding custody, but evidence of parental fitness may overcome this. Understanding what factors a judge will look to for guidance when making custody determinations, as well as knowing when a criminal record can affect aspects of the divorce, may help remove some confusion surrounding custody in Massachusetts.

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Custody Standard

When it comes to making decisions regarding custody awards in Massachusetts, the focus will always be on what is in the best interest of the child. While this can seem like a vague standard, it recognizes that each case is unique and provides judges with the flexibility of giving more weight -- or less weight -- to certain factors. Determining whether a criminal record will affect custody depends on the nature of the crime and how recently the parent committed the crime.

Felonies and Domestic Violence

The exception to a judge's flexibility when determining the weight that a criminal conviction may have on custody is when a parent has been convicted of first-degree murder of the other parent. In these instances, the parent who committed the crime is not allowed to have custody of or visitation with the child until the child is of suitable age to consent to the contact. In addition, by law, a pattern of domestic violence -- or of a serious single incident against the other parent -- creates a presumption against an award of custody. However, the presumption can be overcome by other factors that show parental fitness; the court may order visitation instead of custody if steps can be taken to ensure the well-being of the child. Examples of factors that determine parental fitness include looking at who has been the primary caretaker of the child, which parent has a more suitable living environment and the wishes of the child if the child is of a suitable age.

Non-Violent Crimes

Other, less serious crimes, such as drug charges, look at whether the parent has undergone or is currently undergoing treatment for the behavior. This investigation can provide the judge with some guidance as to whether the home environment is suitable for the child and whether the parent is an appropriate role model. Since drugs carry different penalties - in the case of marijuana, pot has been decriminalized for users 18 years and over in Massachusetts, provided the user possesses an ounce or less - the conviction itself is not the only consideration. Rather, the focus is on whether the parent's current substance use would be detrimental to the child.

Alimony and Employment

In determining the amount of alimony to be paid to a spouse in Massachusetts, the law instructs judges to look at the conduct of the parties during the marriage. However, this only applies to conduct with economic consequences to the family. Crimes against a spouse, such as domestic violence, would generally not affect the award unless it impacted household finances. In addition, having a criminal record might reduce a spouse's ability to find employment or hang on to a job which, in turn, could affect his or her ability to meet a court-ordered child or spousal support obligation. However, by law, employers in Massachusetts are not allowed to ask applicants whether they have a criminal record, unless it is required by state or federal law. Further, an employer must provide an applicant with the ability to respond to any conviction information in the employer's possession; if an employment decision is based on the criminal record, a copy of it must be provided to the applicant.