Tuesday, March 29, 2016

The Effect of a Felony or Misdemeanor Crime on Custody, Child Support and Spousal Support

The Effect of Crime on Custody and Support

I have had several calls lately about crime, specifically felony crime, in the divorce or custody context and how it effects custody, child support and even spousal support.  In general, people want to use another person's criminal record against them to limit visitation, reduce child support or increase or negate spousal support.


When and Why Would a Criminal Record Effect Custody?

The Idaho Code states that custody pursuant to divorce is to be determined as the court deems proper and necessary in the best interest of the child.  There are several factors the court will consider including whether or not there is domestic violence in the marriage and whether it occurred in the presence of the child and the character and the circumstances of all involved.

While the Idaho Code does not specifically state that a felony is to be construed against a party, there is plenty of case law outlining when a felony can and does effect child custody.  Also, there is plenty of case law showing when and how a particular misdemeanor can and will effect the outcome of a child custody placement.

In general, if the crime in question was something that could potentially negatively effect the child, it will be given serious consideration.  For example, if one party is convicted for manufacturing meth in their home, the court will weigh that heavily against the individual.  If the party has a conviction for forgery from before the child was born, the court will place less weight, if any, on the conviction.


Would the Conviction of a Felony Effect Child Support or Spousal Support?

In general, child support will not be effected by a felony or misdemeanor conviction in the sense that one's obligation would be increased or reduced because of the other party's criminal history. If a party is in prison or in jail due to a crime they have committed, they will not be relieved of their obligation either.

Likewise, spousal support will not be effected by one party's criminal background.  The point of spousal support is to provide material support for the spouse who has foregone their own ability to make a career in favor of tending to the home and children of the couple.  The thought is that the party who stayed at home was never given the opportunity to develop a career and a means of support and therefore because they provided for the community in that way, that until they can get to a point where they can make a decent living, the other party will continue to share a portion of their income with them.  This is no way is effected by one's criminal history.  People often like to use the example of their deadbeat ex who stayed at home and did drugs and they don't want to provide spousal support for them.  In this scenario, that person who stayed at home and did drugs is unlikely to be a good candidate for spousal support in the first place so the argument becomes moot.

When it comes down to it, the best question to ask is, "did the criminal behavior of the party create a situation that was dangerous or compromising to the children?"  If so, then it is a relevant point to bring up in court.  If the criminal behavior did not effect the children or even remotely concern them, there is a high likelihood a judge would not consider that as evidence to determine custody.

If you have any regarding divorce or custody and would like to speak with a Boise Divorce Attorney, please give us a call, 208-472-2383.  You will be glad you did.

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