If you’re in a child custody case and you’ve been convicted of a felony, you may wonder if your conviction will affect your custody case.
In Oklahoma child custody law, there are three classes of felonies: 1) felonies that are an absolute bar to obtaining custody of a child, 2) felonies that make it a “rebuttable presumption” that you are an unfit parent, and 3) felonies that are not listed in the child custody statutes.
Felonies that are an absolute bar to having custody of a child
The law says that a court “shall not” award custody to anyone convicted of any of the following felonies:
1. Sexual abuse or sexual exploitation of a child
2. Child endangerment, if the offense involved sexual abuse of a child
3. Kidnapping, if the offense involved sexual abuse or sexual exploitation of a child
4. Incest
5. Forcible sodomy of a child
6. Child stealing, if the offense involved sexual abuse or sexual exploitation
7. Procuring minors for participation in child pornography
8. Consent to participation of minors in child pornography
9. Facilitating, encouraging, offering or soliciting sexual conduct with a minor by use of technology
10. Distributing child pornography
11. Possession, purchase or procurement of child pornography
12. Aggravated possession of child pornography
13. Procuring a child under eighteen for prostitution
14. Inducing, keeping, detaining or restraining a child under eighteen for prostitution
15. First degree rape
16. Lewd or indecent proposals or acts to a child under sixteen
17. Solicitation of minors in indecent exposure or child pornography
Felonies that create a “rebuttable presumption” that you should not have custody of a child
If you’ve been convicted of a felony on this list, there is a “rebuttable presumption” that you are an “affirmatively unfit” parent. “Rebuttable presumption’ means just what it says: If you’ve been convicted of any of these offenses, that court will presume that you are not fit to have custody, but you can rebut the court’s presumption.
Here are the felonies that create a “rebuttable presumption” against custody:
1. Domestic abuse (if the conviction occurred within the last five years)
2. Sexual assault
3. Kidnapping, if the offense involved sexual abuse or exploitation of an adult
4. Human trafficking for commercial sex
5. Incest or sodomy, if the offense involved sexual abuse or exploitation of an adult
In addition, there’s a rebuttable presumption that you should not have custody of a child if
· You are, or ever have been, required to register as a sex offender in Oklahoma or any other state, or
· You are dependent on alcohol or drugs, and can be expected in the near future to inflict or attempt to inflict serious bodily harm to yourself or another person. If someone wants to show that you are alcohol- or drug- dependent, they must show this by “clear and convincing evidence.” To read the definition of “clear and convincing evidence” click here.
There’s also a rebuttable presumption that you should not have custody of a child if you are living with a person who
1. is or ever has been required to register as a sex offender;
2. has been convicted of Sexual abuse or sexual exploitation of a child or any crime listed in the Oklahoma Sex Offenders Registration Act; or
3. has been convicted of domestic abuse in the past five years.
Felonies not listed above
The list of felonies, above, is taken from this statute here.
The above list contains the only felonies that the law says are an impediment to your obtaining custody. However, if you have been convicted of a felony not listed above, the opposing party may still try to argue that your conviction is a basis for denying you custody. It will then be up to the judge to decide whether you should have custody.
There is no law that says a judge may not consider a felony that is not listed in this statute.
Adoptions and Guardianships – a stricter standard
The law on adoptions and guardianships is somewhat stricter. The Oklahoma Adoption Code says that a court may not approve you for an adoption if you have been convicted of:
1. Physical assault (within the past five years),
2. domestic abuse (within the past five years),
3. battery (within the past five years),
4. a drug-related offense (within the past five years),
5. Child abuse
6. Child neglect
7. Any crime against a child, including, but not limited to, child pornography; or
8. A crime involving violence, including, but not limited to, rape, sexual assault or homicide. (However, if you’ve been convicted of a crime listed in paragraphs 1-4, it’s only a bar to adoption if the conviction occurred within the past five years.)
In addition, the crimes which would be an absolute bar to, or a rebuttable presumption against, obtaining custody, would probably also bar or create a presumption against adoption.
If you are seeking guardianship of a child (that is, if you are seeking custody of a child not your own) the law says that if you have any criminal conviction, protective order, pending criminal charge, or other civil or criminal matter in state or federal court, the court must look into the charge or conviction, and appoint you as guardian only if the court determines that the circumstances do not demonstrate that you will be unfaithful to or neglectful of the duties of guardian.
Do you still have questions? Contact the Persaud Law Office
We have been counsel of record in dozens of child custody cases. If you are in a child custody case, or if you have questions as to whether any past felony can prevent you from obtaining custody of a child, contact the Persaud Law Office.