Criminal Histories & Child Custody – Can Child Custody Be Impacted from Prior Convictions in Colorado?

By: Sarah T. McCain

Child custody is a complicated matter in Colorado. A judge should always grant child custody orders according to what is in the child’s best interest. Making this decision takes an in-depth look at both parents and their ability to care for the child. Most criminal convictions will not directly impact a child custody arrangement in Colorado. However, a judge will consider a conviction and the nature of the crime in making his or her decision.

What Crimes Can Impact a Parent’s Right to Custody?

When examining a case to determine child custody, a judge will look at many relevant factors. The judge will typically start with the parents’ wishes for parenting time, the child’s attachment to each parent and his or her community, and the ability of each parent to care for the child. One of the many factors a judge may take into consideration to determine child custody is a parent’s criminal history.

Most criminal convictions are not directly related to a child custody decision. A criminal record can become part of a divorce or custody trial if relevant to the issues in dispute. However, the courts view violent and nonviolent crimes differently. It is less common for a nonviolent criminal conviction to sway a judge’s custody decision. A conviction for a violent crime, however, may impact the judge’s perspective of whether or not the child would be safe in that parent’s care.

• Assault and battery
• Assault with a deadly weapon
• Child abuse or endangerment
• Domestic violence
• Sexual assault
• Harassment
• Kidnapping
• Homicide

Violent crimes can impact a parent’s right to custody. A criminal record that shows a history of violent behavior may make a judge question whether the child would be safe in that parent’s custody. It could also cast doubt on the parent’s character and judgment. If a judge believes the violent crime is enough to prove the parent is unfit for shared or primary custody, a judge may limit the person’s parenting time to only supervised visitation – or eliminate it completely. C.R.S. 14-10-129 lists specific crimes which might preclude a parent from having parenting time and shifts the burden to them to demonstrate to a judge that they are safe. Likewise, C.R.S. 14-10-124, regarding the best interests of the child, indicates that there is a rebuttable presumption that a parent who has committed domestic violence against the other should not have joint decision-making.

Drug and alcohol related crimes can also have an impact on child custody cases. Someone being arrested for possession of a controlled substance in the past, or perhaps a DUI, is generally not going to have an impact. However, recent substance related crimes might, particularly if they involved a child. A DUI with a child in the car may certainly have an impact to the extent that someone is going to need to prove they are a safe parent. Likewise, a recent DUI, coupled with multiple DUI’s in the past, can make things difficult for a child custody litigant. A similar analysis can hold true with drug related crimes. It should also be noted that convictions for crimes related to heavier drugs, such as methamphetamine, cocaine, or heroin are going to have a greater stigma and bring a higher level of judicial scrutiny than crimes related to marijuana or alcohol.

What Happens If I Am Found Guilty of a Crime After a Child Custody Agreement Is Arranged? Can I Lose Custody?

If a judge has already granted you custody of a child in a divorce or child custody case and then you are convicted of a crime, the conviction could affect your parental rights. A crime can be so serious that a parent loses custody. Again, a judge’s main consideration is the best interest of the child. If your criminal conviction gives a judge reason to believe the child would not be safe in your care, such as a conviction for a violent crime, you could lose your parenting time rights.

In some scenarios, a judge may only temporarily change a child custody order while you carry out your sentence, such as spending time in jail. Then, the judge may reestablish the original child custody order if the judge believes it is in the child’s best interest to remain in contact with both parents.

If you believe the other parent’s criminal conviction presents a safety concern such that parenting time or decision-making need to be reassessed, you will need to file a motion with the court to seek a modification your parenting time or joint custody arrangement. In this scenario, you will have to prove that the other parent poses enough of a risk to the child’s health or wellbeing to justify a significant modification of parenting time. A judge will only grant a change to decision-making if, after a hearing, the judge determines that retaining the same custody dynamic would endanger the child’s physical health or emotional development.

When to Speak to a Child Custody Attorney

If a criminal conviction arises which might impact the parenting time or child custody aspects of your case, consult with a family law attorney in Colorado right away. An attorney can help you understand your parental rights, fight for custody on your behalf and represent you during a hearing to modify an existing child custody order. Your lawyer will stand by your side during complicated custody matters.