A Former Prosecutor Defending Clients in Wyoming and South Dakota
If you have been granted child visitation rights and were charged with a crime, you may be concerned about the effect a criminal conviction will have on visitation with your children.
Unfortunately, there is no one-size-fits-all answer to the question of how a criminal charge or criminal conviction will affect your child visitation rights. When considering child visitation rights, courts will consider how the child will be affected by the criminal charges or conviction, and will make decisions that are in the “best interests” of the child. The court will consider the nature of the criminal conduct, whether you were charged with or convicted of a crime, and how the alleged criminal conduct might affect the children.
In some cases, the court will appoint an attorney to represent the interests of the children. This is called a guardian ad litem. When children are old enough, courts may also consider the wishes of the child when deciding visitation rights and child custody.
Child visitation is considered a privilege, not a right. Nonetheless, courts consider it optimal to have both parents involved in raising a child.
Courts generally encourage frequent and regular visits with the non-custodial parent, especially when the parents live close to one another and visitation will not interfere with the children’s school schedule. When the parents do not live close to one another, courts generally encourage visitation during breaks from school and during summer vacation.
However, visitation can be restricted, suspended, denied, or revoked if the court finds that a parent is unfit or that visitation would not be in the best interests of the child. Common factors that lead to a finding that a parent is unfit for visitation include allegations of child abuse, child neglect, child abandonment, or where a parent suffers from a severe mental illness.
Allegations of domestic violence are particularly relevant to decisions about child visitation, especially if the children were the victims of the alleged domestic violence.
Wyoming courts are empowered to modify child visitation anytime there is a change in circumstances and where modification of visitation rights would be in the best interests of the children.
Courts generally prefer to make as few changes to a child’s schedule as necessary. When considering a change to a child visitation schedule, the court will consider the nature of the alleged criminal conduct to determine whether it could potentially have negative consequences for the child. Courts are more likely to impose restrictions or limitations on parental visitation when someone is charged with a drug crime, domestic violence, or a sex crime.
When the criminal conduct is particularly severe, the court will consider whether the parent poses a risk to the physical or emotional well-being of the child. Cases involving homicide, aggravated assault, domestic violence, stalking, kidnapping, unlawful restraint, false imprisonment, rape, sexual assault, indecent exposure, arson, incest, sexual abuse of children, and endangering the welfare of children are all crimes for which courts are likely to suspend child visitation rights.
Courts can place conditions or restrictions on parental visitation rights as they see fit. The restrictions or conditions placed on a parenting plan are often based on the nature of the criminal conduct. For example, if you were charged with a DWUI, the judge may order that a third party transport the children. If you are charged with drug possession, the court may limit your visitation to a public place, or order supervised visitation.
When deciding whether to make changes to a parenting plan, courts will consider the nature and severity of the criminal conduct and whether the charges are significant enough to warrant a change in visitation rights.
When a judge finds that a child’s safety or well-being is in jeopardy, the court may order that visitation be supervised by another adult or a professional agency. When the court finds that visitation with a parent would cause physical or emotional harm to the children, the court may deny visitation.
A court may order supervised visitation in the following circumstances:
Violence or Physical Danger. Courts may order supervised visitation if a parent has abused or threatened physical violence towards a child or co-parent.
Emotional Harm. Court will analyze the child’s behavior for symptoms of emotional abuse or harm. Symptoms of emotional harm or abuse include stuttering, bed wetting, unusual behavior, or poor school performance. When analyzing the potential for emotional abuse courts will, of course, consider these factors in context.
Substance Abuse. Parents who are charged with or convicted of crimes involving drug abuse or alcohol abuse may have their visitation rights restricted if the parent’s behavior endangers the welfare of the child or leads to mistreatment or abuse of the child.
Incarceration. Incarceration alone often isn’t enough to deny visitation; however, visitation may be suspended if it will cause emotional damage to the child. If the incarceration is due to a violent crime or a crime committed against a child, visitation may be restricted, suspended, revoked, or denied.
Child Abduction. A parent who has threatened or been accused of abducting a child is likely to have their visitation modified. In some cases, supervised visitation may be appropriate.
If you are facing criminal charges, remember that there is a difference between being charged with a crime and being convicted. Being charged with a crime is not proof that you committed it. Your lawyer may be able to argue that criminal charges should not be considered with respect to child visitation unless and until you are convicted. If you are not convicted, or if you are convicted of a lesser crime, you could avoid changes to your visitation rights.
Courts are likely to put less weight on a criminal charge than a criminal conviction; however, they will make decisions that are in the best interests of the child.
Even in cases where visitation rights have been denied, a judge may still order a parent to pay child support. It is important to understand that, in the eyes of the law, visitation and child support are two separate matters.
If you are facing criminal charges and are concerned about how a conviction will affect your visitation rights, contact an experienced criminal defense attorney as soon as possible. By mounting an aggressive and effective defense, there is a good chance you can have the charges against you reduced, or even dismissed, and avoid the negative impact of a criminal conviction on your visitation rights. If your co-parent tries to have your visitation rights modified while criminal charges are pending, an attorney can explain to the court the nature of the alleged criminal conduct, emphasize the presumption of innocence, and urge the judge not to make any changes to your visitation rights unless or until you have actually been convicted.
At Just Criminal Law, we understand that criminal charges are scary and stressful, especially if a conviction could jeopardize your relationship with your children. That’s why we will aggressively investigate and challenge the charges against you, fight to help you maintain your child visitation rights, and help you decide what is best for you and your family. We invite you to learn more about our founder, Wyoming criminal defense attorney Christina L. Williams, and our team of criminal defense professionals, to learn why clients choose us, and to contact us today to schedule your personalized case review and strategy session.
DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.