Criminal Convictions and the Impact on Custody / Access

Today, we will be discussing the family law consequence of a criminal conviction against a spouse, such as charges of domestic violence, in a family law matter.

In today’s session, I will be discussing the family law consequence of a criminal conviction against a spouse in a family law matter.

Too often, lawyers are faced with cases where one spouse has been charged with domestic violence against the other spouse. For example, where the parties have had an aggressive confrontation, one party may feel threatened and may contact the police for assistance, alleging that there has been domestic violence in the home. The alleged abusive spouse is then charged by the police and is given specific terms of his or her bail conditions. For example, a bail condition may be that the alleged abusive spouse cannot return to the matrimonial home or that he or she is only allowed to communicate with the other spouse through a third party in order to arrange access with his or her children.

This type of scenario may have a long standing impact on that spouse’s ability to communicate with, access and parent his or her child. If the abusive spouse is removed from the matrimonial home as a result of the actual or alleged domestic dispute, the accuser spouse usually gets what is termed ‘de facto’ custody of the child and ‘de facto’ exclusive possession of the matrimonial home, sometimes regardless of who has had the role of primary caregiver in the past. The spouse who has ‘de facto’ custody, means that they ‘in effect’ have custody of the children. Moreover, the parent who has de facto custody of the children may be at an advantage in seeking and obtaining a final custody order. Although a court will look overall at what custody and access situation best reflects a child’s best interests, the courts may look to maintain the status quo in making their final order. So, where one parent has de facto custody or an interim custody order, the courts generally favour stability and continuity and may refuse to disrupt the existing state of affairs.

When a spouse has been charged with a criminal offence, as in in a domestic dispute, the first step is for that spouse to retain a lawyer. While a lawyer may not be able to do much about the family law matters until the criminal charges have been dismissed, he or she should attempt to ask the criminal lawyer to obtain an order from the criminal court stipulating that access be determined in accordance with an order from a family court and not by the spouse’s bail conditions.

If your family has been affected by domestic violence, which you believe may impact your family law matter, please call us to book an appointment with one of our experienced lawyers or visit our website. Thank you for watching and I will see you next time!

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