Crime and Custody: How Criminal Convictions Affect Custody in Pennsylvania

By Brett J. Zeitlen

You’re fighting for custody of your children. Does the other party have a criminal record? Do you have a criminal record? Will a judge award one party sole custody because of the conviction? Will a judge require supervision or counseling? It all depends on the crime, and whether the convicted party poses a real threat to the child involved.

Whenever a person requests custody of a child, the court is required to consider whether that person or a member of his or her household has been convicted of (or plead guilty or no contest to) one of the crimes listed in 23 Pa.C.S. § 5329. Those crimes are generally referred to as the “enumerated offenses.” The list of enumerated offenses includes a number of violent crimes such as homicide, aggravated assault, terroristic threats, stalking, kidnapping, unlawful restraint, false imprisonment, and arson. The list also includes many sexual crimes and crimes against children such as rape, sexual assault, prostitution, and endangering welfare of children. The list further includes several crimes related to drug use, such as driving under the influence and the manufacture or sale of a controlled substance. If a party in a custody case has been convicted of a crime that is not on the list of the enumerated offenses, the court is not required to consider the crime when awarding custody. 

Being convicted of an enumerated offense does not automatically preclude a person from being awarded custody. Having a household member with that type of conviction also does not automatically preclude a person from being awarded custody. 

When the court learns that a person requesting custody or a member of his or her household has been convicted of an enumerated offense, a judge or master is required to evaluate the specific situation closely to determine whether the offender poses a threat to that child. The judge or master must also decide whether counseling is appropriate. After the evaluation, the judge or master can determine that: (a) The convicted person does not pose a threat to the child; or (b) Further evaluation or counseling by a mental health professional is needed. 

If the convicted person does not pose a threat to the child, the conviction will not prevent custody from being awarded. A judge or master could decide that a convicted person does not pose a threat for any number of reasons. Evidence that the child has had recent contact with the convicted person without incident, that the crime was non-violent, that the conviction is from many years ago, or that the convicted person is rehabilitated can be persuasive. A judge or master can also be influenced by the opposing party confirming that there is not a safety concern. 

If a convicted person is determined to pose a threat, the court will proceed on a case-by-case basis. Therapy, rehabilitation, parenting classes, and supervised parenting time are some of the tools that the court implements in that situation. 

Even if a person convicted of an enumerated offense does not pose a threat, the conviction itself can still be considered when determining the best custody arrangement. 

For more information on how a conviction might affect your custody case, and for assistance regarding all other custody matters, please contact one of the domestic relations attorneys at Willig, Williams & Davidson.