Q: Does having a DUI affect child custody?

Having one driving under the influence (DUI) offense in your past probably won’t impact your child custody case. However, it could if a child was in the car with you at the time. Colorado courts allocate parental responsibilities based on what’s in the child’s best interests. Your judgment as a parent matters. Operating a motor vehicle while chemically impaired shows questionable judgment. Doing so with your child in the car demonstrates recklessness. As with many drug and alcohol offenses, it’s the recency, severity, and frequency of the crimes that will most affect your child custody matter. For example, it will look very bad if you are charged with a DUI during a pending custody proceeding. It’s the same if you have more than one DUI on your record, as that would indicate a pattern, not just a one-time mistake. If you’ve recently been convicted of a DUI, you probably will not be allowed to drive for a certain period. This would have a major effect on your custody case and your parenting time. A court could even restrict you to supervised visitation until you are able to regain your driver’s license.

Question 1

Does having a DUI affect child custody?

Accepted Answer

Having one driving under the influence (DUI) offense in your past probably won’t impact your child custody case. However, it could if a child was in the car with you at the time.

Colorado courts allocate parental responsibilities based on what’s in the child’s best interests. Your judgment as a parent matters. Operating a motor vehicle while chemically impaired shows questionable judgment. Doing so with your child in the car demonstrates recklessness.

As with many drug and alcohol offenses, it’s the recency, severity, and frequency of the crimes that will most affect your child custody matter. For example, it will look very bad if you are charged with a DUI during a pending custody proceeding. It’s the same if you have more than one DUI on your record, as that would indicate a pattern, not just a one-time mistake.

If you’ve recently been convicted of a DUI, you probably will not be allowed to drive for a certain period. This would have a major effect on your custody case and your parenting time. A court could even restrict you to supervised visitation until you are able to regain your driver’s license.

Question 2

Can a convicted drug felon get custody of a child?

Accepted Answer

Drug-related charges and convictions can seriously reduce a parent’s chances of getting any kind of meaningful custody of their child(ren).

Colorado courts are concerned that a parent’s dependence on uncontrolled substances, especially methamphetamines, cocaine, or heroin, could lead to a child being neglected or even abused.

However, if the drug offenses are far enough in the past, a case can be made that the parent has been rehabilitated. To help their case, these parents can provide records to the court showing sobriety over an extended period. Often, the parent will be required to submit to blood and urine tests, taken by a certified professional, as proof of sobriety.

Question 3

Does a felony affect child custody?

Accepted Answer

Yes. However, not all felonies affect child custody equally.

If a felony conviction happened far enough in the past, then the parent can present a reasonable case that they’ve turned their life around. However, if the crimes are recent or recurring, it suggests a capacity for poor judgment and even negligence where a child is concerned.

Non-violent felonies have the least impact on one’s ability to get custody rights to their children. However, crimes like embezzlement, fraud, and bribery still show poor judgment, dishonesty, and an attempt to “beat the system.” White collar offenses can hurt one’s credibility with a judge in a custody case.

Drug-related felonies can hurt your case even more, especially if they are recent or recurring. If a parent has a history of substance abuse, it suggests an inability to put their child’s needs over their addiction. Depending on the drug of choice, a parent could behave unpredictably or become so passive that their children are neglected. A judge must also consider the risk of a parent suffering an overdose while they have the children – or worse, the children getting into the drugs themselves.

Violent crimes can have a serious impact on a parent’s right to custody. A history of violent behavior will make the court question whether the child is safe in that parent’s care. In fact, Colorado law lists several violent crimes that may prevent a parent not only from having custody, but could seriously curtail visitation rights as well. These include:

Murder
Sexual assault
Enticement of a child
Unlawful sexual contact, if the victim is forced to submit
Incest
Any sexual crime or act committed against or with a child
Any human trafficking committed with a child

— Colorado Revised Statute 14-10-129 (3) (a) (b)

A conviction for any other violent crime can damage a parent’s chances at getting custody rights to their child, especially if committed against or in front of a child. They include:

assault and battery,
assault with a deadly weapon,
domestic violence,
child abuse,
harassment, and
kidnapping

If a judge believes the violent crime proves a parent unfit for primary custody, they may limit parenting time to only supervised visitation or eliminate it completely.

The Best Interests of the Child

Remember, the court’s main job is to act in the best interests of the child or children (Colo. Rev. Stat. 14-10-124). If one parent has a felony criminal record and the other does not, that’s already a major tilt in the scales against the felon.

Then again, life is rarely so cut and dried, and there are a myriad of other factors a court will consider before allocating parental responsibilities and parenting time. For example, both parents could have felonies on their record; or one parent could have a felony conviction, but the other has been diagnosed with mental health problems.

Question 4

Does past drug use affect child custody?

Accepted Answer

It depends on how far in the past the drug use occurred.

Past drug use can affect one’s child custody matter if a court still considers it recent and relevant. How much depends on other factors, such as:

whether the drug use contributed to other problems such as domestic violence, child abuse, neglect, poor decision-making, or frequent arrests
whether the parent is physically or psychologically addicted to the drugs, impairing their ability to prioritize the needs of the child, and
the danger of the drug itself, especially methamphetamines, heroin, and opioids

Past experimental drug use and even current recreational use of marijuana won’t impact a parent’s custody chances too much.

Even previous use of heavier drugs such as methamphetamine, cocaine, or heroin will not hurt one’s custody chances if it happened far enough in the past.

Question 5

Can a felon get custody of a child?

Accepted Answer

Generally, yes. However, it depends on a number of factors such as:

the type crime or crimes on the felon’s record
when the crime occurred
who the victim was, or who victims were

The best interests of the child come first in any proceeding concerning the allocation of parental responsibilities and/or parenting time. Therefore, if the felony conviction is for a violent crime, and especially if the victim was a child, it will be harder to get custody.

Felonies that Can Prevent Getting Custody of a Child

Most of the time, the court will consider the individual circumstances when it comes to child custody. But some felony crimes are classed as worse than others when it comes to this type of topic. If a parent has committed one of the following felonies, it is unlikely that they will be granted custody of a child:

Domestic violence
Sexual assault
Child abuse
Assault
Murder
Kidnapping
Robbery

Of course, some of the crimes listed above carry lengthy prison sentences after a conviction, which renders the question moot. One’s child likely will no longer be a child once the felon is out of incarceration and in a position to try for custody.

Question 6

How does a restraining/protection order affect child custody?

Accepted Answer

Negatively. Of course, it still depends on the circumstances of the restraining/protection order.

A protection order against you means you have been credibly accused of stalking, harassing, or assaulting another person.

If you got into a fight with somebody who isn’t a family member and they got a protection order against you, that might not have as much bearing on your custody case as, say, domestic violence against your own family.

If you have a prior or current restraining order based on domestic violence or child abuse, you’ll have difficulty getting custody — unless you have a strong case the order is based on bad information or that the domestic violence occurred while you were protecting the child from the other parent. However, none of that is ideal either.

In short: Having a restraining/protection order against you might not destroy your chances at getting custody of your child, but it never helps.

Question 7

Can you lose custody for child endangerment?

Accepted Answer

Yes. You can lose custody for committing or being convicted of child endangerment. This does not necessarily mean you will.

Child endangerment is defined as placing a child in a life-threatening or dangerous situation in which the child could be injured. It can be charged as a felony or a misdemeanor crime. It depends on the severity of the danger the child faced. Either way, you don’t want it on your record when you stand in front of a judge asking for custody of your kids.

Fortunately, Colorado has a longstanding policy of maintaining contact between the child and both of his or her parents. This means it will take a pretty compelling collection of facts to show that one parent has put their own child in immediate risk of harm or injury.

As the main child custody statute states:

“ … in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage.” — Colo. Rev. Stat. § 14-10-124

Most courts, however, will err on the side of caution to protect the child anytime there are allegations of endangerment.

Question 8

Can someone on parole get custody of a child?

Accepted Answer

Yes, a person who has been released from prison and placed on parole can get custody of their child.

However, the person does not have custody while they are incarcerated. They can share some decision-making responsibilities with the other mother or father, providing neither that parent nor the court has terminated the jailed person’s parental rights.

According to the Annie E. Casey Foundation, 55 percent of state prisoners and 63 percent of federal inmates are parents of minor children. For many, knowing they have children and family to care for on the outside can be a powerful incentive to rehabilitate and earn their release.

Of course, some of those children will no longer be minors when their parents get out on parole.

Even so, Colorado courts would consider granting legal custody and visitation rights to former inmates and felons who show themselves to be fully rehabilitated.

Question 9

Can a drug addict get child custody?

Accepted Answer

A former drug addict can rehabilitate themselves enough to eventually gain custody rights to their child or children.

However, an active drug user could be restricted to visitation until their addiction is under control. If a parent is an alcoholic, or uses harder drugs such as heroin, cocaine, or methamphetamines, they could even lose access to visitation or be forced to have supervised parenting time.

Of course, all of the above assumes that the other parent in the custody dispute is a “model citizen” where it comes to avoiding drug use. That’s not always the case. This is why courts consider a wide range of factors in child custody cases, not just one or both parents’ drug use.

Drug Laws vs. Family Law

Colorado is one of the nation’s more progressive states when it comes to decriminalizing certain drugs. However, family law still prioritizes the health, safety and “best interests” of the child in custody matters.

This means that:

Even if using certain drugs, like marijuana or “magic mushrooms” are legal, they can still impact a judge’s determination of whether someone is a fit parent, and
Any past or current drug use by a parent will come up in a contested child custody proceeding.

The judge in any custody case where at least one parent is psychologically dependent on controlled substances must mull the following questions:

Does this parent provide a safe and stable environment for their child?
Is the parent willing to put their child’s needs above their own, and
Does the parent project a positive image and lifestyle for the child?

Now, read the above questions again and substitute the word “drug addict” for parent. That’s the uphill battle an unreformed drug user faces in child custody cases, even when they love their children dearly.

Such a parent should consult a knowledgeable attorney to help present a fuller picture of the stability and safety of their home.

Question 10

Can a misdemeanor affect child custody?

Accepted Answer

Most misdemeanor convictions do not directly impact child custody determinations. In fact, if you’ve committed a crime before your child was born, it likely will have no bearing.

Generally, the more time that has elapsed since the crime, the better off you’ll be. For example, if you committed a Class 1 misdemeanor — say, theft of a laptop — six years ago and you haven’t committed another crime since then, you’re probably good.

On the other hand, if you got caught stealing a laptop a month before your child custody proceeding, it raises questions about your judgment and honesty. Despite this, you’ll likely retain most of your parental rights, but it can still count against you.

Weighing Statutory Factors

A Colorado court isn’t looking for a reason to cut a parent out of their own child’s life. This is clear from the first paragraph of Colorado Revised Statute 14-10-124:

“… The general assembly finds and declares that, in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage.” — Colo. Rev. Stat 14-10-124

However, the severity and extent of one’s criminal history can make the difference between primary decision-making custody and joint custody, or between joint custody and only being allowed periodic visitation.

For example:

Crimes of theft, fraud, or deceit call into question a parent’s trustworthiness and judgment
Crimes of mischief, such as vandalism, harassment, or assault, raise doubts about a parent’s maturity, and their ability to encourage a positive relationship between their child and the other parent.
Recurring drug offenses raise doubts about a parent’s ability to put their needs of their child above their own
Sexual crimes, such as indecent exposure, or unlawful sexual contact, invite serious questions about a parent’s judgment, especially if the victim was a minor
Even recurring traffic violations, especially speeding, reckless driving, careless driving, or DUI, can raise concerns about the safety of a child with the parent
Past jail sentences can negatively impact a parent’s history of involvement with their child, as well as their ability to reliably exercise parenting time

Child Abuse and Neglect

Child abuse is a Class 1 misdemeanor in Colorado when “no serious injury” results from the incident. It is also considered an “extraordinary risk” crime, which can carry even heavier penalties.

No misdemeanor crime negatively impacts a parent’s chances in a custody proceeding more than child abuse. In most proceedings, it is an automatic bar to obtaining decision-making authority:

“If the court finds that one of the parties has committed child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the legal representative of the child.” — C.R.S 14-10-124 (4) (I)

The same applies to incidents of domestic violence as well as sexual assault if the assault resulted in the child’s conception. If a child has witnessed domestic violence, the attacker can be charged with child abuse in addition to assault.

Question 11

How does domestic violence affect child custody in Colorado? (if a child witnessed the fighting)

Accepted Answer

In Colorado, there is no particular crime called “domestic violence.” Rather, domestic violence is an enhancement added to other offenses if the attacker and victim were in an “intimate relationship.”

A lover, spouse, or child can be in an “intimate relationship” with an attacker who either lives with them in the home or has become a significant person in their life.

Statutory crimes that often add a domestic violence enhancement include:

First- and second-degree assault
Child abuse
Stalking and menacing
Unlawful sexual contact
Harassment
False imprisonment

If a child witnesses an incident of domestic violence in the home, the attacker can be charged with misdemeanor child abuse. This applies even when the intended victim was another adult or parent, and not the child.

Domestic Violence Impacts Child Custody

Let’s keep it simple: domestic violence committed against a child is child abuse. Domestic violence committed on another adult, and witnessed by a child, is also child abuse.

Child abuse by itself is an automatic barrier to gaining primary or joint decision-making custody in Colorado. Adding the domestic violence enhancer to it doubles the impact, because that also bars the offender from having primary or joint custody. — C.R.S. 14-10-124 (4) (II)

Lower Burden of Proof

The burden of proof for domestic and child-related crimes is lower in family court than it is in criminal court. According to C.R.S. 14-10-124 (4) (IV) (d), the burden is a preponderance of the evidence instead of beyond a reasonable doubt.

This means that even if you haven’t been convicted of child abuse or a domestic crime, you will still need an attorney to help you defend against the allegations.

11 Questions and Answers about Criminal Convictions and Child Custody in Colorado