Custody Issue: Other Parent Charged With a Crime — What Do I Need to Know?

By Matthew T. Hovey, Esquire

Unfortunately, I encounter situations where a client is confronted with the news that the other parent of his or her children has been charged with a crime. Regardless of his or her relationship with the parent (i.e., married, separated, dating, or strictly parental), the client is always overwhelmed by an immediate desire to protect the children and understand how the criminal charge could affect the other parent’s custodial rights. The goal of this article is help parents placed in the difficult situation of co-parenting with someone subject to criminal charges understand their rights and the interaction between the custody and criminal systems.

Q: Is there somewhere I can go to check and see if the other parent has been charged with a crime?

A: Yes. You may check the Unified Judicial System of Pennsylvania, located at http://www.courts.state.pa.us/T/AOPC/PublicAccessPolicy.htm. Under “Search for Court Case Information (Web Docket Sheets),” click on the appropriate court system: (a) Magisterial District Courts (Traffic, Non-Traffic, Criminal); (b) Philadelphia Municipal Courts; (c) Court of Common Pleas (Criminal, Miscellaneous, Summary Appeal); and (d) Appellate Courts. You can search by the parent’s full name and date of birth. I recommend thoroughly searching all of the databases.

Q: If the other parent has been charged with a crime, then how can an attorney help?

A: An attorney can file an Emergency Petition for Custody on your behalf. The procedure for Emergency Petitions differs from county to county and some counties will not permit an Emergency Petition to be filed without an attorney. The Petition will lay out the particular facts of your situation and allow you the opportunity to request the appropriate relief from the court (i.e., sole legal and physical custody). Shortly after the filing of the Petition, the Court will typically conduct a timely hearing on the facts and evaluate whether steps need to be taken to protection the children.

Q: Are all criminal charges treated equally?

A: No. The criminal charges most important to the court are those that somehow interact with the child’s safety. For example, possession of marijuana is a serious crime, but, by itself, may not be enough for the court to suspend a parent’s custodial rights. Other crimes, however, are statutorily mandated to strip a parent of their custodial rights. These criminal charges include: (a) all variations of criminal homicide; (b) aggravated assault; (c) terroristic threats; (d) stalking; (e) kidnapping; (f) unlawful restraint; (g) false imprisonment; (h) rape; (i) statutory sexual assault; (j) involuntary deviate sexual intercourse; (k) sexual assault; (l) aggravated indecent assault; (m) indecent assault; (n) indecent exposure; (o) arson and related offenses; (p) incest; (q) endangering welfare of children; (r) sexual abuse of children; and (s) contempt claim for violation of a protection from abuse order. 23 Pa.C.S. 5303(b)(b.1).

Q: How does the court treat these statutorily mandated criminal charges?

A: The statute permits a parent who is aware of pending charges against the other parent may “move for a temporary custody order or to modify existing custody, partial custody or visitation temporary custody order… The temporary custody or modification hearing shall be scheduled expeditiously.” The court must consider whether the parent poses a risk of harm to the child. In making this determination, the court MUST appoint a “qualified professional to provide counseling to the offending parent” and must take testimony from this professional prior to issuing any permanent order for custody or visitation. According to Ramer v. Ramer, 914 A.2d 894 (Pa.Super. 2006), the professional must have an expertise related to the underlying offense. For example, if the parent was charged with a sex offense, the professional must be qualified to counsel sex offenders, the parent must complete the sex offender counseling, and the professional must testify in court as to the effectiveness of the counseling and whether the parent poses any risk to the child. Custody should not be restored until the counseling in completed. Typically the costs of the evaluation and testimony is placed on the offending parent.

If you, a family member, or a friend are co-parenting with someone charged with one of the crimes listed above, please counsel him or her to immediately contact an attorney and gain a deeper understanding of his or her rights. An Emergency Petition may be required. Please know that our firm currently offers free initial consultations and I would be glad to sit down and counsel them on their options.