Does Having a Criminal History Affect Child Custody in Massachusetts?

| Apr 19, 2017 | Child Custody |


In Massachusetts, the degree to which the conduct of a parent can affect acustody 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 or paternity action, may help remove some confusion surrounding custody in Massachusetts.

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 parenting time 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 parenting time 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. 

Should you be in the midst of a divorce or paternity proceeding, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation to discuss your particular situation.

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