After the divorce is final, both parties want to move on. People start dating again, and perhaps even get married again. Normally, this is a good thing, and if you have kids, it can help them, too. But if your new spouse has a criminal record, things get complicated. And you may be wondering, “Can I lose custody for marrying a felon?” The answer is yes—but not necessarily. So today’s blog will explain what you need to know about this potentially volatile situation.
What is a Felony in Texas?
First, let’s explain a couple of things. A felony is a crime that is more serious than a misdemeanor. It usually involves steeper fines and longer jail time. Felonies can be violent or nonviolent. Examples include:
- Drug abuse violations
- Burglary, arson, robbery, and auto theft
- Assault, manslaughter, murder, and forcible rape.
The courts may consider a DUI (driving under the influence) a felony if the person’s blood alcohol exceeds a certain level. Learn about our areas of legal service.
Also, both men and women can be felons. However, data provided by the federal government shows that the overwhelming proportion of felons are men. So for the sake of simplicity, this article will focus on the idea of someone marrying a man who is a convicted felon.
Understanding the Risk of Marrying a Felon
The first thing to know is that in most cases, you will not automatically lose custody of your children if you marry a felon. Divorced parents have the right to associate with whomever they want. What’s more, just because someone broke the law in the past does not mean they cannot change their ways. A person who has served time can hold a job, get married, and become an excellent parent or stepparent.
Thus, the real issue is your children and your ex. The Texas Family Code states that courts must make custody decisions based on the best interest of the child. This is important to know because any action you take that a court sees as not being in the child’s best interest puts your custody rights at stake.
For example, suppose you marry a felon who committed a violent crime. Your ex could file a petition requesting custody of your child. And he could base the petition on the claim that your new husband has bad judgment and is a danger to the best interests of the child.
Of course, your ex will need to produce evidence to support his petition. But you will need to be able to produce evidence that your new husband is NOT a danger to the child.
Marrying a Felon? Before You Lose Cutody, the Court Will Weigh the Evidence
If you are marrying a felon, the court will look carefully at two factors: First, the nature of the felony, and second, how long ago it occurred.
For example, suppose your new husband recently served time for illegally using drugs in the presence of children. Or perhaps he assaulted someone and stole their car. When a judge hears about these crimes, you might have a hard time keeping child custody.
On the other hand, suppose your new spouse was convicted of a DUI many years ago. And in addition to having done his sentence, he also has completed an alcohol rehabilitation course. In this case, the court may be much more sympathetic to your parental rights.
How Can I Lose Custody After Marrying a Felon?
A parent can lose possession for a variety of reasons. This includes neglect of the children and abandonment. But your rights also may be at risk if you knowingly and willfully place your children in a situation that puts them at physical or emotional risk.
You should also be aware that you could lose custody of your child before you marry a felon. For example, one woman got engaged to a convicted murderer who was still in prison. When her ex found out about her plans, he went to court to win custody of their children.
The woman was put in a very difficult position. How do you convince a judge it is in the best interests of the children to be raised by a convicted murderer they have never met? Read our blog on involuntary termination of parental rights.
The Mother Does Not Have Automatic Preference
Men sometimes are reluctant to pursue their parenting rights because they think judges favor women in this area. But courts are not supposed to have a bias toward either gender. As noted above, the court’s task is to determine what is in the best interest of the child.
Also, even if you do not have primary custody of your children, you still have parental rights. Usually, this includes the right to parenting time and the right to be involved in making decisions about their well-being.
So if you are a father who is concerned about your ex marrying a felon, don’t assume you have no recourse. You have every right to demand the court take action to ensure your child’s best interest. Of course, judges are human, and therefore not perfect. So if you are wanting to modify your custody arrangements, we strongly recommend you hire a lawyer who can provide good legal advice.
Can a Parent Refuse to Return a Child?
A parent has every right to be concerned about the well-being of his or her children. The parent also has the right to request full child custody. However, only by the courts can change custody arrangements. A parent cannot simply “take” the children. (This restriction applies to grandparents and other adults, as well.)
If your ex refuses to return your kids, it is almost certainly a violation of your court-ordered parenting plan. It’s also probably a violation of the law. You should contact the police and be prepared to press charges. You should also consider hiring an attorney and suing for damages.
What Can I Do If My Ex Won’t Let Me See Our Child?
As we mentioned, the law does not allow a parent to simply abduct the children. Similarly, the law does not allow a parent to withhold the children. The court prepared visitation arrangements that are legally binding. If your ex is refusing to honor those rights, it is time to call the police—and an attorney. In the most extreme cases, a judge can imprison the parent for contempt of court. Read our recent blog on contempt of court consequences.
Can I Lose Custody for Marrying a Felon? Yes, So Remember the Big Picture
Regardless of the circumstances, if you are worried about losing custody, or wanting to win it, we advise you to get some good legal advice quickly.
At the same time, we have to mention the bigger picture. Is this felon really the best person for you and your kids? Are there no other options? And is being with this former criminal really worth the risk of losing your children?
Of course, we can’t answer those questions for you. But if you choose to marry a felon, it’s worth taking time to consider the potential consequences. Yes, everyone deserves a second chance—but your children deserve a first chance.
Whether You’re Marrying a Felon Or a Prince, First Make Sure Your Divorce is Done Right
The attorneys of the Maynard Law Firm, PLLC, are experienced, skilled, and compassionate. We can advise you on the best course for all your family law issues. With two offices in Tarrant County, our law firm has years of experience handling divorces, as well as cases involving custody, child support, and court order modifications.
We also offer a no-cost initial consultation. Don’t let the stress and complexity of divorce overwhelm you: Contact us today at 817-335-9600.