Criminal Charges and Custody: an Overview

How Does a Pending Criminal Charge Affect Custody in Massachusetts? 

While a pending criminal case can be devastating to a parent’s custody arrangement, the effect is far from automatic. Like all decisions regarding children, a case involving a concurrent criminal matter will be considered on its individual merits. The extent to which a pending criminal charge affects custody depends on the nature of the crime charged, the weight of the evidence against the accused, and how, if at all, the pending charge affects the accused’s ability to parent. 

The first thing to know is that judges in family court have broad discretion when making custody determinations. Their decisions are rarely reversed on appeal. Massachusetts law requires judges to make custody decisions that are in “the best interest of the child.” They must take into account a list of factors set out in the statute, but are largely left to make these tough decisions based on the facts as they see them. So, the result in any one specific case may depend on who is judging the case and what facts the parents are able to get in front of the judge in the short amount of time available. 

Domestic Violence: If a parent has been charged with a crime of domestic violence, the family court judge will make a determination as to whether abuse occurred. If the family court judge determines that abuse occurred, there is a presumption that the abusive parent will not have custody. If the judge finds that the parent found to be abusive should have custody, the judge must specifically write why they are placing the child with the parent accused of abuse. So, a domestic violence charge can be very damaging to the custody prospects for the parent charged. But it is not so simple. Family court judges have seen every manner and degree of bad behavior. This includes spouses falsely claiming domestic violence in order to gain an advantage in the custody dispute. Factors that can influence how much a domestic violence charge affects custody include the nature of the abuse charged, the strength or weakness of the case against the accused, and the credibility of the accuser. Simply accusing the other parent of being “abusive” or “controlling,” without more, will not lead to a finding of abuse by the family court judge.

Other Crimes: If a parent has been charged with a different type of crime, such as those relating to drugs or theft, the family court judge will want to know that any underlying issues, such as substance use or mental health disorders, are being addressed. Remember, the judges are looking for the best situation for the child. This determination is naturally a comparison of the available options. Judges also want to keep things consistent for kids, when possible. So, if the factors weigh in favor of one parent, and that parent has also been the primary caretaker, that parent will likely continue to have the majority of the parenting time. If you want it to change you will need to be very effective in your presentation to the court and have very compelling reasons for a change. 

If you are a parent facing criminal charges, know that the mere fact of a pending charge does not mean that you cannot see your children. If the other parent is withholding parenting time from you because you have a pending criminal charge, you may well be able to get some type parenting time through the courts. It will depend on the nature of the offense charged and the other factors above. The most important thing to remember is that, unless there has been direct harm to the children, judges, in accordance with Massachusetts law, place a high value on keeping both parents in kids’ lives. 

For more information specific to domestic violence and custody, check back next week for a focused examination of this intersection.