How Does Prior Criminal Conduct Affect My Child Custody Case, And How Can An Expungement Help Me Get Shared Custody?


Evidence of past criminal conduct can be difficult to overcome if you are involved in a child custody case. In a child custody case, the opposing party may use past criminal conduct against you to reduce or eliminate your custody and visitation rights. If you are involved in a child custody dispute, you should contact an experienced attorney immediately to help you protect your child custody and visitation rights.

The Best Interest Standard (California Family Code section 3011)

When making child custody orders, the court will consider what is in the best interest of your child. One of the factors involved in determining what is in the best interest of your child include whether either party has engaged in criminal conduct. Under California Family Code section 3011 the family law courts will consider:

1) Whether there is a history of domestic violence by either parent against any of the following:

a. Any child related by blood, adoption, or a child that the person is caring for;
b. The other parent; OR c. A parent, current spouse, or cohabitant of the person seeking custody.

2) The habitual or continual abuse of alcohol;

3) The habitual or continued illegal use of a controlled substance; AND
4) The habitual or continual abuse of prescribed controlled substances.
Family Code section 3011 also states that the court may consider any factors that it feels are relevant in making a child custody determination. This includes any evidence of past criminal conduct.

Felonies And Misdemeanors

Whether a family law judge will consider your prior felony or misdemeanor conduct in making a child custody determination will depend on the type of offense, how much time has elapsed since the commission of the crime, and whether your conviction has been expunged.

If your prior criminal conduct falls into any of the Family Code section 3011 categories mentioned above, the court can use those facts when making a decision regarding the child custody rights you will have with your children. A court will be more likely to limit your visitation with your children if your criminal conduct was violent in nature and involved spousal or child abuse. A court will be less likely to consider a criminal act that is not directly related to parenting (i.e. automobile insurance fraud under California Penal Code section 550).

If your conviction has been expunged, the court may give less weight to that conviction. However, a court may still consider the expunged offense when making child custody and visitation order.

Sex Crimes

Sex offenses are very serious crimes. If the opposing party introduces evidence of a sex crime against you, it is unlikely that you will be awarded favorable child custody and visitation orders. You should contact an experienced attorney immediately if you have been charged with, or convicted of a sex crime.

Clearing Your Criminal Record (California Penal Code section 1203.4)

California Penal Code section 1203.4(a) states the following:

“In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation… be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty.”

Expunging your record and participating in self-help programs, such as an anger management, may show the court that you have rehabilitated yourself from prior criminal conduct. To qualify for an expungement under California Penal Code section 1203.4, you will need to fulfill the conditions of your probation term. These may include, but are not limited to, the following:

• Pay all court fines and restitution;

• Serve the term of your probation sentence;

• Make all necessary court appearances;

• Refrain from committing any new crimes; AND
• Comply with any other court-imposed probation terms, such as the following:

o Counseling sessions;

o Group therapy; OR
o Community service.

If you have any questions concerning your child custody case, contact skilled San Diego family law attorney Roy Doppelt today.

Written by Paul J. Wallin of Wallin & Klarich, A Law Corporation

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