Can my criminal record from 10 years ago be used against me for my custody hearing? 21 Answers as of July 11, 2013

My criminal record has been erased because it was so long ago. If asked about my record under oath during the divorce trial, can I say I have never been arrested? If I do say that I have a criminal record, will it affect my custody?

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Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
First, it is not up to you to make such a determination. It is up to a Judge to decide whether such a record is too remote to affect the proceedings. So answer any such question honestly and let your attorney decide how to object or let it in and ask it be overlooked due to its age. Good luck.
Answer Applies to: New York
Replied: 7/5/2011
Meriwether & Tharp LLC
Meriwether & Tharp LLC | Patrick Meriwether
In every Georgia court I have been in, lying on the stand quickly comes back to harm many litigants. Honesty is the best policy. There may be, however, objections that would prevent the question from even being asked. You should consult with an experienced divorce attorney.
Answer Applies to: Georgia
Replied: 6/30/2011
Seattle Divorce Services
Seattle Divorce Services | Michael V. Fancher
If you were asked whether you have ever been arrested, you would need to answer yes, but you could also explain that there is no criminal record at this time. While your arrest could be raised by your spouse, since it was a long time ago it probably would not have a great deal of weight, though what you were arrested for could make a difference (for instance child sexual abuse even 10 years ago would be far more important than theft 10 years ago).
Answer Applies to: Washington
Replied: 6/28/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
You should not say you have never been arrested. Simply because it is "off your record" does not mean it didn't happen. So you could be questioned about it, but either you or your atty. can object and state it is not relevant. For custody, it is usually discussed or mentioned during the review process, and determined if it is relevant or not relevant and if not, then not usually an issue in a trial hearing on the custody.
Answer Applies to: Wisconsin
Replied: 6/28/2011
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Your "criminal record" is not particularly significant, by itself, to decisions affecting parenting rights and responsibilities. What is significant is what kinds of conduct resulted in that "record" and in that context it may be relevant forever. If you were convicted of child sexual abuse, for example, that could be relevant for the rest of your life. The question is not necessarily whether you were ever "arrested" but whether you have ever been convicted of a crime that could indicate you might not be a fit parent.
Answer Applies to: Colorado
Replied: 6/28/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You should retain an experienced Family Law Attorney to represent you in your divorce. An experienced Family Law Attorney would know the proper evidentiary objections to make to questions posed to you at trial or hearing on Order to Show Cause. Whereas you should not lie in your testimony, arrests are irrelevant - they don't prove that you committed a crime. An experienced Family Law Attorney should be able to persuade the Court to sustain an objection to a question asking whether you have ever been arrested, or asking whether you have ever been convicted of a crime or have a criminal record. Evidence of a felony conviction is admissible for the purpose of attacking the credibility of a witness, but if the accusatory pleading against you has been dismissed under the provisions of Penal Code Section 1203.4, any plea of guilty or conviction under that accusatory pleading would have been set aside. If you were convicted of a felony, you should speak to your Family Law Attorney and/or an experienced Criminal Law Attorney to determine whether or not you could be required to answer any questions regarding that felony conviction - especially since you say that your record was erased merely due to its age. If your conviction was for a misdemeanor, your Family Law Attorney's evidentiary objection to a question asking whether you have been convicted of a misdemeanor should be sustained.
    Answer Applies to: California
    Replied: 6/28/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    The answer is "maybe." It is going to depend on a number of different criteria. In Washington, those criteria are laid out in Evidence Rule 609. It will also depend on what you mean by "erased." Without knowing a lot more about your situation, it is difficult to give too definite an answer. One thing that the other side may be trying to do is to attack your credibility. There should probably be an objection to a question like "have you ever been arrested." However, if the question is not objected to, or if the court over rules the objection and allows the question, then, you have to tell the truth. If you testify that you were never arrested, and the other side proves that you were, then, your credibility with the court is going to suffer. A loss of credibility may have a much greater affect upon your case than an old arrest or conviction, again, depending exactly upon the circumstances.
    Answer Applies to: Washington
    Replied: 6/28/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    You should be honest and forthright. If it was that long ago, and it didn't involve violence or risk of injury to a child, it shouldn't have an impact so long as you have been clean since.
    Answer Applies to: Connecticut
    Replied: 6/28/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    No you cannot lie about your criminal history. If it happened, it happened. However, if it is from 10 years ago, then it is most likely too remote in time to be relevant (depending on what it is and what has happened since). If asked, you should object to the relevancy of the question.
    Answer Applies to: Florida
    Replied: 6/28/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    if has been sealed by court order. you can say no. if you think it happened automatically it didn't, it must have been done first through FDLE to get a certificate of eligibility, then a petition filed with the courts, ten an order of the court directing all agencies to seal records.
    Answer Applies to: Florida
    Replied: 6/28/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Of course. How important it is depends. If you say you have never been arrested you will be lying. If you get caught lying you may loose all credibility. The court in Washington can consider any information that's relevant about parenting even if your criminal record is expunged.
    Answer Applies to: Washington
    Replied: 6/28/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    An expunged criminal record from 10 years ago should be irrelevant in a divorce situation. If you anticipate that you may be asked about this matter, you should have your attorney make a motion in advance to keep that matter from the public record and exclude the evidence, since having to testify about the matter will undermine the entire reason you sought to have it expunged by making it public record.
    Answer Applies to: Louisiana
    Replied: 6/28/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    It depends on the crime.
    Answer Applies to: Connecticut
    Replied: 7/11/2013
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Yes. Any evidence deemed relevant to the issue may be raised in court. First, criminal records are never erased. If you are convicted, it is a permanent record unless the law allows for expungement. Second, although a ten year old record may be raised in a custody case, in most instances, a ten year old record is unlikely to have any significant impact. Third, perhaps the biggest mistake may be to lie about the record under oath. Being caught in an lie may do more harm to your custody case than the record itself.
    Answer Applies to: Minnesota
    Replied: 6/28/2011
    Koch Laron Law
    Koch Laron Law | Phillip Koch
    A custody hearing is for the judge to determine whats in the best interest of the child(ren) - plain and simple. Will your ex bring up the arrest. Possibly, but alot depends on what you were arrested for and what you have done in the interim. If the judge determines that your arrest is no longer relevant, or that the ten years in between prove that you a good parent it shouldnt matter much. As for what to say under oath, NEVER lie under oath during a deposition, better to "not recall" " not understand" or "not answer".... Your arrest record is easily obtainable anyway, better to be straight up about it and just tell the truth, as ten years is a long time. I would strongly advise that you hire an attorney.
    Answer Applies to: California
    Replied: 6/28/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    The answer to this question depends upon the state you are in. In California you may have had your record expunged under Penal Code Section 1203.4. However, this does not mean that it is off your record for all purposes. However, since it is over 10 years old, if your spouse tries to bring the matter up in the custody battle you should argue that under Evidence Code Section 352 the evidence is too remote in time to be relevant. You can also explain to the judge that your record was expunged but this will not mean the court cannot consider it. It also will depend upon the nature of the offense. If the offense was for child abuse or spousal abuse the court may wish to consider it at the custody hearing. If it was for something totally unrelated to what is in the "best interest of your children" the court will likely not consider it.
    Answer Applies to: California
    Replied: 6/28/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    You may not say under oath that you have never been arrested. If you do, that will be used against you. A 10 year old conviction that has been expunged will not be used against you if you are honest and upfront. You should disclose the record and discuss that you have no further arrests. If you lie under oath, the court may question your integrity.
    Answer Applies to: California
    Replied: 6/28/2011
    Edwin Fahlen Attorney at Law
    Edwin Fahlen Attorney at Law | Edwin Fahlen
    The issue is "the best interest of the child". Your arrest record is not relevant unless it effects the best interest of the child NOW. if asked a question under oath you must state the truth. If you are caught in a lie on the stand, it is not only a new crime, you can kiss the chance for custody good bye. However, with competent legal counsel there are creative ways to object to, or answer a question in the best light for you. If you are seeking to hire that competent legal counsel, pick up your telephone and call me right now.
    Answer Applies to: California
    Replied: 6/28/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    There is no such thing as "erasing" a criminal record. A false answer in a civil case not only could hurt your case but it could land you in prison for perjury. The correct answer depends on the exact wording of the question and what was done to your record (pardon, expungement, etc.) This is something that you must discuss with your attorney, and, given what is at stake (custody) it would be highly foolish to come to court without a lawyer.
    Answer Applies to: Georgia
    Replied: 6/28/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    I am unclear as to whether your record was deemed by you to be too old to be active or whether you had the crimes expunged. If not expunged, the record is still there. You will need assistance with your custody case. Get direction from your lawyer on how to handle the questions.
    Answer Applies to: Ohio
    Replied: 6/28/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    You should never lie in Court. The Court will consider the circumstances and determine what is in the best interests of the child(ren).
    Answer Applies to: Washington
    Replied: 6/28/2011
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