One of the interesting questions regarding custody is the effect that a criminal conviction has on the Court’s determination regarding custody. As a practical matter, how much does a criminal conviction injure a parent’s attempt to regain or preserve their custody of a child or children? While certainly crimes of physical or sexual abuse will be regarded as potentially disqualifying factors with regard to custody, Courts have indicated that poor decision making leading to convictions or even crimen falsi crimes do not act to disqualify a parent from obtaining custody or even becoming the primary parent. It appears that a Court’s perception of the credibility of a parent is primary. That determination if well founded will overcome criminal behavior even against an appeal.
L.E.S. v. W.C.D., 2019 Pa. Super. Unpub. LEXIS 141 is supportive of this premise. In L.E.S. parents divorced and fought over custody of their child. In a previous custody trial, the Court determined that the mother had left the child alone in her home in order to go to a bar to drink alcohol and that this action also resulted in a DUI conviction. Moreover, the Mother was determined to be bipolar and further had been convicted of credit card fraud as well. During this litigation the father had been awarded primary physical and legal custody.
However, the mother later challenged this custody arrangement. She convinced a Court that she had ceased drinking alcohol. Moreover, she had obtained treatment for her bipolar disorder and proved that she saw her psychiatrist monthly and her psychologist every two weeks. She also proved that she had engaged in parenting duties and carried them out competently. The father indicated that mother was not stable and has psychological issues and of course raised the specter of the past fraud and DUI convictions. However, the mother’s testimony carried significant weight with the Court. It indicated the following about the father’s attitude evident at the custody trial.
“It appears from the totality of the evidence that Father does not see Mother as a priority as to the Child based upon the past behavior regarding the crime for which . . . she has been convicted. And he seems to feel that he is in charge, over Mother, in regard to the Child. This is reflective in the way he talks about her, the way he says that the Child needs to get back for something instead of being with Mother, as if . . . whatever he has to get back for something that is more important that the Child’s relationship with his Mother. Father seems to have concluded that Mother is a second-class parent by virtue of her DUI and is going to ride that for all its worth and that Mother can never redeem herself.” L.E.S. Supra.
The Court recognized the mother’s past errors but based upon her testimony, demeanor and her behavior as a mother during the intervening two years the Court did not place strong evidentiary weight on her past misdeeds. The Court noted that based upon this past malfeasance the Court would be entirely appropriately entitled to discount her testimony. However, despite this the Court found the mother credible and indicated that the past convictions were not enough to warrant a finding of a current lack of credibility. The Court seemingly felt that the mother had to a great extent redeemed herself and should not be judged by her past misdeeds.
The Court stated: “However, query: does that incident mean that Mother can never have primary custody of the Child ever again? Was that the first domino that knocks all of the other dominos over for the rest of the Child’s life and her life? It appears that she has rehabilitated herself; there is no evidence that she had any additional criminal problems since then and has demonstrated good stability since then. She is currently in a relationship, she has a productive job making good money, she has the support of her mother, who lives nearby.” L.E.S., Supra.
The Court explicitly indicates that past misdeeds and convictions as well as past high-risk behavior will not necessarily prevent an individual from obtaining majority legal and physical custody in a custody action. The totality of circumstances will determine the result.