Can Prior Drug Convictions Affect Child Custody? A Divorce Lawyer Explains
As divorce lawyers, we’re often asked about criminal records and child custody. People are worried their past mistake(s) will cost them access to their child. Or they’re worried their ex-spouse is dangerous, and want the family courts to consider all past convictions for drugs, violence, or other charges.
Everyone makes mistakes, but some errors can have a long-lasting effect. This is especially true when a parent with a previous drug conviction (or another type of offense) seeks custody of a child during divorce proceedings.
Due to your conviction, you might lose custody or access to your children. Read on to learn more about what your rights are in this situation.
How Can a Prior Drug Conviction Affect Your Custody?
Let’s say you and your ex-spouse cannot reach an agreement about who should have custody of the children. A judge will make that decision for you.
How does the judge decide? He or she looks at what’s in the best interest of the children. The best interest of the child is for him or her to live in a loving, stable environment with a parent with whom he or she has a strong relationship. Moreover, that parent must be able to take care of the child properly. The judge will determine the best interests of the child based on the evidence presented by both parents.
Your previous drug conviction will come into evidence, because when you apply for custody of your child, you must undergo a police background check. The police will include your criminal arrest record as well as any other pertinent information the judge will need to determine who should get custody.
Why Your Prior Convictions Matter
You might say, “Well, I was arrested years ago. I’ve changed since then, and I haven’t repeated the offense since.”
It’s ultimately up to the judge to make that determination. Your conviction might not cause the judge to deny you custody or access. It will give him or her pause, though.
Your current behaviour, especially towards your ex-spouse and child, will play a role in the judge’s decision. Let’s say that you were convicted of drug charges seven years ago, before your child was even born. You were a casual drug user, and after the conviction, you gave up drugs completely. Since the birth of your child, you’ve been completely sober. Your previous drug use has no bearing on your ability to care for and provide for your child.
Now, let’s say you’ve had more than one drug conviction. And you still struggle with substance abuse issues. Your drug problem prevents you from creating the stable environment your child needs to flourish. Furthermore, you’re not setting a good example for your child. The judge will not be inclined to grant you custody because it’s not within the child’s best interest. There’s also the possibility that the judge could restrict your access to the child (meaning you would see your child under a set of very limited circumstances).
If the conviction resulted in jail time, the judge will take that into consideration. Having served jail time doesn’t necessarily mean the judge will deny you custody of your child. But if your experience in jail severely affects your ability to create a nurturing home for your child, the judge may decide it’s not in the child’s best interest to live with you.
Get the Right Legal Advice about Child Custody from a Trusted Source
Are you concerned that your past will negatively influence your chances for gaining custody of your child? You need to speak to a family law expert to learn about your rights and the legal system.
Fine & Associates Professional Corporation is a well-respected Toronto Law Firm that prides itself on providing quality personal service and favourable outcomes in Family Law and Divorce Law.
You can click here to contact us, or fill out the form on the right for a free private phone consultation. Or call us at the phone number at the top of the page.