In Utah, divorce and child custody proceedings are deeply influenced by the principle of the "best interests of the child," a standard that guides family courts in making decisions about custody, visitation, and other family law matters.
When one or both parties involved in a divorce or custody dispute have a criminal record, this factor can significantly impact the court's rulings. A criminal record introduces intricacies that may affect the perceived stability, safety, and moral character of a parent, all of which are scrutinized in family law cases.
Attorney Preston Day can help you understand how a criminal record influences divorce and custody decisions in Utah, examining relevant laws, judicial considerations, and practical implications for individuals traversing these proceedings. Contact his firm in Alpine, Utah, for assistance from an experienced criminal defense and family law attorney.
Laws Governing Divorce and Custody in Utah
Utah's family law system operates under the Utah Code, specifically Title 30 (Husband and Wife) and Title 78B (Judicial Code), which outline the procedures and standards for divorce and custody determinations.
Utah is a no-fault divorce state, meaning that a divorce can be granted based on irreconcilable differences without proving wrongdoing by either party (Utah Code § 30-3-1). However, fault-based grounds, such as felony conviction, can still be cited and may influence related matters like alimony or property division.
For custody decisions, Utah courts prioritize the best interests of the child, as outlined in Utah Code § 30-3-10. This statute lists factors courts consider, including:
The parents' past conduct and moral character.
The ability of each parent to provide a stable, safe environment.
Any history of domestic violence, abuse, or neglect.
The child's relationship with each parent.
A criminal record directly relates to these factors, as it may raise concerns about a parent's ability to provide a safe and stable environment or reflect on their moral character.
Types of Criminal Records and Their Relevance
Not all criminal records carry the same weight in family court. The nature, severity, and recency of the offense, as well as its relevance to parenting, are critical in determining its impact. Below are common categories of criminal offenses and their potential effects on divorce and custody proceedings:
Violent Crimes
Convictions for violent crimes, such as assault, battery, or domestic violence, are particularly significant in custody cases. Utah Code § 30-3-10(2)(k) explicitly requires courts to consider evidence of domestic violence or abuse.
A conviction for domestic violence may lead to restricted custody or supervised visitation, as it suggests a potential risk to the child or the other parent. For example, a parent convicted of assaulting their spouse may face limitations on custody, as the court may view them as a threat to the child's safety.
Drug-Related Offenses
Drug-related convictions, such as possession, distribution, or manufacturing of controlled substances, can severely impact custody decisions. Utah courts view substance abuse as a factor that may impair a parent's ability to care for a child.
A recent conviction for drug possession could lead to requirements for drug testing or substance abuse treatment as a condition for custody or visitation. Older convictions, especially if the parent demonstrates rehabilitation, may have less impact.
Sex Offenses
Convictions for sex offenses, particularly those involving minors, are among the most damaging in custody cases. Utah courts are highly protective of children, and a parent with a sex offense conviction may be denied custody or visitation altogether. Even non-sexual offenses, if they suggest moral turpitude, can influence a judge's perception of a parent's fitness.
Property Crimes and Non-Violent Offenses
Less severe offenses, such as theft, fraud, or DUI, may have a more limited impact but are still considered. A pattern of non-violent offenses might suggest instability or poor judgment, potentially affecting custody or alimony decisions. For instance, a DUI conviction could raise concerns about a parent's ability to safely transport a child.
Felony vs. Misdemeanor Convictions
Felony convictions generally carry more weight than misdemeanors due to their severity. A felony conviction can also be grounds for a fault-based divorce under Utah Code § 30-3-1(3)(f), potentially influencing alimony or property division. Misdemeanors, while less serious, can still reflect poorly on a parent's character if they form a pattern of criminal behavior.
If you’re facing any of these charges during a divorce, it is important to seek counsel from an experienced divorce attorney.
Impact on Divorce Proceedings
While a criminal record may not directly affect the granting of a divorce, it can influence ancillary issues such as alimony, property division, and divorce attorney fees. Below are key areas where a criminal record may play a role:
Alimony
In Utah, alimony is determined based on factors like the financial need of the recipient, the payer's ability to pay, and the length of the marriage (Utah Code § 30-3-5). A criminal record can affect alimony in several ways:
Fault-based considerations: If a spouse's criminal behavior contributed to the breakdown of the marriage (e.g., domestic violence or substance abuse), the court may adjust alimony awards. For example, a spouse convicted of domestic violence may be ordered to pay higher alimony to compensate for emotional or financial harm.
Financial impact: A criminal record may limit a spouse's earning capacity due to incarceration, fines, or employment difficulties, reducing their ability to pay alimony. Conversely, if the other spouse's criminal record caused financial strain (e.g., legal fees or lost income), this could justify a higher alimony award.
Property Division
Utah follows an equitable distribution model for dividing marital property (Utah Code § 30-3-5). A criminal record may influence property division if it demonstrates financial irresponsibility or fault. For instance, if one spouse's criminal activities (e.g., fraud or embezzlement) depleted marital assets, the court may award a larger share of the remaining property to the other spouse.
Divorce Attorney Fees
Courts may order one spouse to pay the other's attorney fees in cases of financial disparity or fault. A criminal record that caused significant legal or financial burdens (e.g., domestic violence or reckless spending due to addiction) could lead to an order for the offending spouse to cover fees.
Impact on Custody and Visitation
Custody decisions are the area where a criminal record is most likely to have a profound impact. Utah courts award both legal custody (decision-making authority) and physical custody (where the child resides), with a preference for joint custody when it serves the child's best interests. A criminal record can disrupt this preference in the following ways:
Sole vs. Joint Custody
A serious criminal record may lead to an award of sole custody to the non-offending parent. For example, a parent with a recent conviction for child endangerment or domestic violence is unlikely to receive joint custody, as the court prioritizes the child's safety.
Joint custody may still be awarded if the offense is minor, distant, or unrelated to parenting, and the parent demonstrates rehabilitation.
Supervised Visitation
In cases where a parent's criminal record raises safety concerns but does not warrant denying visitation, courts may order supervised visitation. This requires visits to occur in the presence of a neutral third party, such as a social worker or family member, to verify the child's safety.
Supervised visitation is common in cases involving domestic violence or recent drug-related convictions.
Parental Fitness Evaluations
Courts may order a custody evaluation to assess a parent's fitness, particularly when a criminal record is involved. Evaluators, typically psychologists or social workers, examine the parents' criminal history, rehabilitation efforts, and current lifestyle to make recommendations to the court.
A favorable evaluation showing remorse, completion of rehabilitation programs, or a stable lifestyle can mitigate the impact of a criminal record.
Modification of Custody Orders
A criminal conviction after a custody order is issued can lead to a modification of the order. Under Utah Code § 30-3-10.4, a parent can petition for modification based on a "material and substantial change in circumstances." A new conviction, especially for a serious offense, may qualify as such a change, potentially resulting in reduced custody or visitation rights.
Contact a Divorce Lawyer
A criminal record can significantly influence divorce and custody decisions in Utah, particularly in matters of custody and visitation, where the child's best interests are paramount. The impact depends on the nature, severity, and recency of the offenses, as well as the parents' efforts to rehabilitate and provide a safe environment.
While a criminal record poses challenges, a divorce attorney can help. Whether you’re in Salt Lake County or Utah County, contact Attorney Preston Day in Alpine, Utah, for assistance with your case.
