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How Criminal Charges Can Affect Child Custody and Access in Alberta

When criminal law and family law intersect, the cases often involve a parent’s criminal past in relation to parenting time and decision-making determinations.

Family law and criminal law often intersect, and a prime example is in relation to parenting time and decision-making responsibilities in child custody cases. A parent’s ability to avail themselves of robust parental rights can be curtailed by a past criminal conviction or a criminal charge that is pending. Cases involving parenting time are always evaluated in relation to the children’s best interests, which means each case is determined in accordance with the unique circumstances involved. If you’re facing a child custody case and you have a criminal record, it’s time to consult with an accomplished Alberta criminal lawyer who has a wealth of experience successfully guiding challenging cases like yours toward advantageous outcomes that help preserve their clients’ parental rights.

Child Custody in Alberta

Alberta laws address child custody as parenting orders, which include both parenting time and decision-making responsibilities. All things being equal, Alberta courts consistently find that the best interests of children are best supported when the children are allowed to spend time with both parents. As such, it is rare for a parent to lose all parental rights, but supervised visitation is often required when the involved circumstances call for it.

The Children’s Best Interests

The court looks to the child’s best interests when ruling on both parenting time and decision-making authority, including concerns such as the following:

• The child’s needs in relation to their age and developmental stage, including any special needs
• Each parent’s ability to effectively address the child’s needs
• Each parent’s ability to effectively provide for the child in terms of guidance, education, and the necessities of life
• The stability each parent’s home provides
• The child’s relationship with each parent
• Each parent’s overall physical, emotional, and mental health
• The child’s relationships with others who play an important role in their life, including their siblings, grandparents, and beyond
• Each parent’s willingness and ability to support the child’s relationship with the other parent
• Each parent’s schedule
• The support system that each parent’s immediate family provides
• The preferences of the child – if they are old enough and mature enough to weigh in
• Each parent’s plans regarding the child’s care
• Each parent’s involvement in raising the child to date
• Each parent’s commitment to the child’s cultural, linguistic, religious, and spiritual heritage and upbringing
• Each parent’s ability and commitment to keep the lines of communication with the other parent open
• Whether family violence plays a role
• Any civil or criminal proceeding, condition, measure, or order that is relevant to the child’s safety, well-being, or security
• Whether either parent has a criminal record

Parenting Time

Parenting time refers to the schedule that determines how parents divide their time with their shared children. Often, parents split their parenting time fairly evenly, but children may live primarily with one parent while having a visitation schedule with the other.

Decision-Making Responsibilities

Decision-making responsibilities refer to who will be making important decisions on behalf of the children post-divorce or breakup, and the kinds of decisions involved include those related to all the following:

• Where your children will live
• The education your children will receive.
• The extracurriculars your children will participate in
• Your children’s religious upbringing

The parent who has the children at any given time is responsible for making day-to-day decisions on their behalf, but the responsibility for making the primary parenting decisions noted above is often shared. This can mean making the decisions together or dividing the decisions between both parents according to category. When sole decision-making responsibility is assigned, the parent identified has complete decision-making authority.

Resolving Child Custody Terms

When parents are able to negotiate mutually acceptable child custody terms between themselves, the court’s intervention is not required, and the case is likely to proceed more smoothly. When one parent, however, has a criminal conviction on their record or has a criminal charge pending, the case is far more likely to become contentious and proceed to court. If you are the parent with a criminal history, working closely with a seasoned criminal lawyer is the surest means of protecting your parental rights and your close, ongoing relationship with your children.

Your Criminal Record

The fact that you have a criminal record or are facing a criminal charge doesn’t translate to an automatic loss of custody, but it is important to proceed with caution. Your divorcing spouse or your children’s other parent can introduce your criminal record during the child custody proceeding, and the fact of your record can negatively affect its outcome.

A Matter of Degree

The seriousness of the offence in question will naturally play an important role in the effect it has on your child custody proceedings. The more recent the charge and the more serious and violent it is in nature, the more likely it is to seriously affect your child custody arrangements. It’s important to note, however, that a judge can find a parent with a criminal history unfit to make important decisions on behalf of their children and even unfit to care for or spend time alone with them. Seek the professional legal counsel you need.

When the Charge Is Domestic Violence

When the criminal charge in question relates to domestic violence, it can seriously affect child custody determinations, and the scope of domestic violence in this context has been expanded to include all the following acts toward any member of the family:

• Physical abuse
• Sexual abuse
• Physical threats
• Failure to provide
• Harassment and stalking
• Financial abuse
• Psychological abuse
• Threats or violence against animals or property, including the family home

Charges related to sexual assault, whether they lead to a conviction or not, can have a far more powerful impact on child custody arrangements, and the judge may find that it’s in the children’s best interests for the offending parent to lose all parenting time and decision-making authority.

A Minor Charge

If you have a record of relatively minor criminal activity in your past, such as a shoplifting conviction, it’s unlikely to significantly affect the outcome of your child custody case – if it has any bearing at all. This said, however, applying for a pardon or record suspension, which demonstrates your commitment to being on the right side of the law, may improve the judge’s estimation of your character, which can play an important role in the outcome of your case.

An array of drinking and driving convictions, on the other hand, could support a determination that your inability to make good decisions reflects on your ability to provide your children with the care they need. In other words, each case is carefully considered in relation to the unique circumstances involved.

How Your Criminal Record Will Play Out in Court

It’s important to point out that if you have a serious criminal conviction on your record, the criminal court matter can’t be re-litigated in your family law case. This means that now isn’t the time to demonstrate that you were wrongfully convicted. Criminal convictions are binding in civil courts.

If the conviction doesn’t amount to much and isn’t relevant to your ability to parent, it may not have much of an effect, but if the conviction is serious, it can seriously impede your parental rights.

Violence or Abuse against the other Parent

There is general agreement that shared parenting isn’t considered appropriate when the charge in question involves serious and substantiated violence or abuse against the other parent or a child. Ultimately, witnessing abuse against a parent is considered a serious form of child abuse. Putting this general agreement into practice, however, often proves difficult.

On the Most Serious End of the Spectrum

There is general agreement across family courts that parents on the more serious end of the domestic abuse continuum should have very limited access to their children – if any. Any visitation generally requires the supervision of highly trained professionals. For example, a parent with a history of chronic family violence who has exhibited a pattern of abuse, who has little remorse to show for it, who is not at all invested in treatment, and whose focus is punishing their ex rather than being a loving parent to their children tends to fit the bill.

On the Least Serious End of the Spectrum

On the other end of things are those parents who slipped up once and deeply regret it. For example, a parent who snapped and shoved their spouse in an isolated incident that was seriously out of character, who is genuinely remorseful, who accepts all responsibility, and who is eager to get the therapeutic help they need is a different story. In such instances, co-parenting is by no means out of the question.

The Area in Between

It’s the cases that fall in between the two extremes outlined above that tend to be the most challenging. A wide range of factors, from the relationship history to community resources and the strengths and weaknesses of the individuals involved, are generally analyzed in the process. While domestic violence is a considerable factor in child custody determinations, it’s not the only factor and isn’t always the determining factor. Your unique case will be determined in accordance with the involved circumstances and the available evidence, and a formidable criminal lawyer can help.

The Court’s Assessment

When it comes to the intersection of criminal charges and child custody, the court will likely turn to the expert testimony of a psychologist. When an assessment is ordered, it generally involves the psychologist meeting each of the children and the parents a number of times in order to observe and assess the relationships between them, the family dynamics, and the children’s best interests and to make recommendations to the judge based on their observations.

Courts tend to take these recommendations very seriously, which makes fully participating in the process advised.

Your Case

If you have a criminal offence on your record and are concerned about how it might affect your child custody case, you need trusted legal counsel on your side. While it’s true that criminal charges affect the outcomes of some cases involving parenting time and decision-making responsibilities, it isn’t always the case. The specifics involved will guide the outcome of your case, and having trusted legal guidance in your corner can make a significant difference.

Your accomplished criminal lawyer will ably take on all the following tasks in pursuit of your case’s best possible resolution:

• Demonstrating your history as an effective parent who takes your children’s best interests seriously
• Highlighting the close relationships you’ve fostered with your children
• Bolstering your character via the testimony of those who know you well as both a parent and a person
• Gathering and compiling the evidence necessary to support a favourable case resolution
• Helping you make the right decisions for you throughout the legal process
• Sharing any mitigating factors that lessen the relevance of your past charge
• Ensuring that you bring your strongest case in support of your parental rights

An Experienced Alberta Criminal Attorney Can Help

If you have a criminal charge on your record and are facing a child custody case, protecting your parental rights is paramount, and our skilled criminal lawyers have the compassion, legal insight, and focus to help. While a criminal history can absolutely affect the outcome of your case, it needn’t be the deciding factor, and with knowledgeable legal representation on your side, you’ll greatly increase the chances that it won’t be. Interested in learning more about the intersection of criminal charges and custody rights? See our guest blog on the West Legal site, or reach out and contact us for more information about how we can help you today.