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How Do Criminal Charges Affect Child Custody & Access In Alberta?

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How Do Criminal Charges Affect Child Custody & Access In Alberta?

Posted on June 17, 2021

Ross Lutz Barristers child custody Featured

Criminal law and Family law often intersect, specifically in regard to deciding whether a person with a criminal record can have parenting time and decision-making responsibilities of the child(ren).

Many matters relating to parenting time with children end up in court, it is more so when one or both parties involved, have a criminal record. Having a criminal record although reflects negatively on the parent, if that parent is able to show that they have been rehabilitated and have taken active steps to better their life, then they could potentially have access to their child(ren). However, depending on the severity of the criminal offence, the judge may determine that the party is not fit to make decisions in the best interests of the child(ren) or that their bad judgment in the past might negatively affect or even endanger the life of the child(ren). In these cases, that parent might lose all parenting time and decision-making abilities.

Prior to limiting or removing a parent’s rights, a judge will make several considerations, the most important one being, what is in the best interests of the child(ren).

In order to gain a better understanding of this matter, let’s first look at child custody and how it is determined?

Child Custody

Child custody or parenting time, legally means, having care and control over the child(ren). When a couple is separating and they have children, often, the most contentious matter is that of custody and access to the child(ren). In uncontentious matter’s, parents are able to amicably share parenting time and decision-making responsibilities; however in many cases, specifically ones where a party has a criminal record, the matter is far more complicated and often ends up in court.

Some of the considerations a court will make in order to determine custody and access include but are not limited to:

  • The Parent-Child Relationship;
  • Parenting Abilities Of Each Party;
  • Stability Of Each Parent’s Home Environment;
  • Mental, Physical, And Emotional Health Of Each Parent;
  • Ability Of Each Parent To Provide The Child With Guidance, Education And Necessaries Of Life;
  • Ability Of Each Parent To Provide For Any Special Needs Of The Child;
  • Schedules Of Each Parent;
  • The Availability Of Support Systems (Involvement Of Extended Family);
  • The Child’s Wishes (As Of The Age Of 12, The Child Can Decide Which Parent They Would Prefer To Live With);
  • Criminal History Of Each Parent; And
  • The Best Interests Of The Child(Ren).

In Canada, having a criminal record does not automatically mean you will lose custody of your child (unless the crime was of a sexual nature or the crime involved the child). A way to counter the criminal record is to apply for a record suspension which would show the judge that the parent has made a real attempt to reintegrate into society as a law-abiding citizen and to rehabilitate themselves.

As a part of the court process of deciding what is in the best interests of the child(ren), a court will often rely on the opinions and information provided by a psychologist. The psychologist will meet the child(ren) and parents several times in order to make observations and they will then make a recommendation to the judge as to which parent should have custody or whether the parent with the criminal record is able to care for the child properly. The court often takes these recommendations very seriously and hence, if an assessment is ordered, it would behove you participate.

Want to read more about custody battles and how criminal charges can affect custody rights? See our guest blog on the West Legal site.