Parental Criminal Convictions and the Best Interest of the Child

Abstract

Although the impact of mass incarceration on families is universally recognized, less analyzed is what, if any, the family law response should be. In particular, once the parent is no longer incarcerated, what weight should a parent's criminal conviction be given in making determinations about the children of that parent? In Pennsylvania, where the author directs a family law clinic, the custody statute is hyper-criminalized. Since 1990, the Pennsylvania custody statute has had a rebuttable presumption of threat of harm attached to certain criminal convictions which were listed in the custody statute, but there were only 11 crimes enumerated in the statute. In 2010, Pennsylvania amended its custody statute to expand the list of crimes which create a rebuttable presumption of threat of harm to a child. If a party or household member of a party has been convicted of one of the crimes enumerated in the custody statute, that party may not be granted custody until a court has made an explicit finding that the party does not present a threat of harm to the child(ren). The central question this article seeks to address is as follows: are there good family law reasons for a presumption regarding criminal convictions in custody matters? By considering social science literature and legal sources, the article will evaluate the value of giving weighted consideration to certain crimes in determining the best interest of children. This article will also make recommendations regarding the weight that should be given to criminal convictions in making best interest custody decisions.