Ex-Convicts and their Rights in Family Law Issues

New York, as most states, has many concerns when it comes to ex-offenders who are seeking to assert rights in Family Court or family law cases. And although the legislature, bureacrats and society at large claims to appreciate when someone has served their time, the reality is that when it comes to sensitive topics, such as custody of a minor child, an ex-convict's past can and most likely will come back to haunt them.

In child custody cases for instance, there is no law that states that having a criminal record automatically prohibits you from seeking or obtaining custody of your child. The judge will consider a myriad of factors when making the determination "the best interests of the child", one of them can very well be the nature of any past criminal convictions. On the other hand, a criminal history for egregious acts such as murder, manslaughter or sexual assault/rape may lead to a termination of parental rights. Furthermore, if being incarcerated for a period of more than six months keeps the non-custodial parent from visiting with their child, then a termination proceeding may be instituted on the basis of "abandonment".

In child visitation cases, again the judge will weigh several factors based on the standard "the best interests of the child". This means that the non-custodial parent that has a criminal history may have visitation set forth based on the nature of the prior conviction(s), i.e. a mother who has a larceny conviction may be prohibited from taking her child to any retail establishments when visiting with her. In instances where the judge believes the child's safety can be jeopardized, based entirely on the previous convictions, he or she may order supervised visits until he or she is convinced that there is no longer a threat. The standard is the same if the non-custodial parent is incarcerated at the time they seek visitation, "the best interests of the child" prevails. So if the judge thinks that it is emotionally and psychologically sound to have a child visit his or her parent in prison, then that judge will order visitation with specific instructions to faciliate visitation.

An ex-convict may have a problem becoming a guardian based on his or her criminal past. It is absolute that a convicted domestic violence offender, child abuser or violent or sex offender, for obvious reasons, will be precluded from becoming the guardian. However, having a criminal background for a non-violent offense more than ten years, may not prevent the judge from awarding the petitioner from becoming the guardian of a child. In these cases, the circumstances of the case will certainly affect how the judge will rule when faced with this dilemma. Similarly, an ex-convict with these criminal convictions cannot become a foster or adoptive parent.

An ex-offender has major obstacles when it comes to child support matters. If an offender has a child support order issued from court prior to incarceration, that order does not terminate or is not suspended based on the incarceration. While incarcerated, the non-custodial parent may file a downward modification petition seeking to reduce the amount based on reduction in income. However, the court typically interprets incarceration as being due to a "willful" act of that parent and thus can deny the petition. (If the child support is being paid to the Department of Social Services, then the petition may be granted.) Upon release, though, an ex-convict will more than likely be responsible for any arrears that has accumulated, unless he or she can prove indigency (where arrears will be capped at $500.)

In Family Court order of protection cases, having a criminal conviction for a similar offense is highly prejudicial. Domestic violence offenders will be tarnished in almost any family law issue regardless of the circumstances. Family Court is established to protect families from offenders and thus will do little more than scratch the surface to find out the circumstances of prior convictions for violence against loved ones.

Having a current criminal case and a past criminal history may have different circumstances depending on the case. However, do not expect any leniency just because there has been no conviction yet, merely asserting innocence is not not enough sometimes.