When it comes to child custody arrangements, states typically take the position that frequent and continuing contact with both parents is beneficial to the welfare of the child. However, in some cases a parent may pose a risk to the child's safety or mental health. The degree to which repeated incarceration will affect a parent's ability to have contact with his child will depend greatly on the nature of the crimes committed and the potential effect on the child.
Types of Custody
Child custody can be broken down into two basic components: legal custody and physical custody. Legal custody is the ability to make major decisions regarding your child, such as where she goes to school, what religious training she receives, and whether she receives medical treatment. Physical custody refers to where the child lives. Physical custody involves some day-to-day decision-making, including determining the child's diet and wardrobe. Both types of custody can be shared or held solely by one parent.
When it comes to establishing a physical custody order, all states require that courts promote the best interests of the child. Although state law can vary on the specific factors a judge may consider, the safety of the child is of great importance. For that reason, the nature and the age of a parent's criminal convictions are crucial. For example, a parent who has been repeatedly incarcerated for crimes involving violence may be viewed as less capable of promoting the safety of a child than a parent convicted of multiple embezzlement charges. However, if the parent can establish that sufficient time has passed since the conviction and he has completed anger management courses, the court might be more receptive to allowing some custody rights. Sometimes, depending on the circumstances, a court might start with more restricted parenting time, such as supervised visitation, and work up to additional time and rights if supported by the parent's conduct.
Domestic violence serves as a strong indicator that the welfare of the child may be jeopardized by a shared physical custody arrangement. Some states, such as Massachusetts, have passed laws that require judges to consider violence against a spouse or the child as a factor contrary to the best interests of the child. In addition, if one parent has killed the other parent, this crime serves as a complete bar to custody or visitation in some states, unless the child is of suitable age and consents.
In determining whether to order a shared legal custody arrangement, the court also bases its decision on the child's best interests and considers the nature of the crimes that led to a parent being repeatedly incarcerated. In general, the conviction of a crime demonstrates questionable judgment to the court. However, like physical custody, if a parent can show that breaking the law is in his past, and he can demonstrate a pattern of good decision-making, a court may take this evidence into consideration. If a parent's convictions were drug-related, an important inquiry for the court will be whether the parent is presently using drugs. Evidence of completing a drug treatment program would be helpful to establishing that this behavior is not likely to recur.