Wives become ex-wives. Convicts become ex-convicts. Serve your time and you’re an ex-convict. But felons? A felon is a felon for life. So, when your ex-wife starts dating a felon, are you cool with that? What can you do? How can you protect your kids?
Two Different Issues
You learn your ex-wife is dating a felon. Is this felon around your kids? Is this felon inviting seedy characters over to your ex-wife’s home, subjecting your kids to bad influences?
We certainly understand the leap from, “My ex-wife is dating a felon,” to “How do I get full custody?” Unfortunately, these are two different issues:
- My ex-wife is dating a felon. Is that a strong enough legal reason to question and challenge her fitness as a parent?
- How do I get full custody? I know the court order decreed that she got either full or shared custody but I want to challenge that prior decision now, attacking her fitness as a parent and using the felon dating as an example.
First Issue: Felons and Felonies
Virginia’s legal code has six classifications of felonies. Class 3, 4, 5, or 6 felonies carry jail times of no more than 20 years down to as little as one year. Not great, but really not the stuff of comic book villains, is it?
The Class 1 felony is the stuff of nightmares. It carries the death penalty or life imprisonment. A Class 2 felony is punishable by a life sentence.
If your ex-wife really is dating a felon, she is:
- Jail dating the felon found guilty of a Class 2 felony, or
- Correspondence “dating” one of the state’s only two death row inmates, Anthony Juniper or Thomas A. Porter (a highly improbable situation); or
- Actively, physically dating a convicted felon released after serving time for a Class 3, 4, 5, or 6 felony
If one of the first two situations grips your family, the effect on your children is probably minimal. The kids would have no direct contact with the felon in question. You may not have a case attacking her fitness as a parent, because she can credibly say she is shielding the kids from the felon’s influence.
Your real problem as a Dad is that third situation: the felon is a hot mess and is out and about and part of your children’s lives. Sure, some felons fully repent, become great role models, and do right by their loved ones (which could mean your ex-wife). It’s just — some don’t.
The presence of a felon in your ex-wife’s and children’s lives may point to her questionable judgment, may indicate a disregard for the children’s safety, and worst of all, may ignore a powerful Virginia law: § 18.2-370.2.
Sex Offenses Prohibiting Proximity to Children
Under Code of Virginia § 18.2-370.2, a felon can be “forever prohibited” from being within 100 feet of children.
If your ex-wife is dating a felon burdened with this prohibition, the felon and your ex-wife are breaking the law. Both are guilty of a Class 6 felony.
In any combination of ex-wife-dates-felon scenarios, your first, best move is to enlist the aid of a family law attorney. The felon need not be actively grooming your own children to be goons and henchmen to be a bad influence. You have every right to question your ex-wife’s choices if they can be proven to not be in the best interests of your children.
Second Issue: Full Custody
Your family law attorney can bring to a Virginia Juvenile and Domestic Relations Court a motion to get full custody of your children so that your ex-wife’s felonious “date” is not around them.
Your attorney may be able to obtain an emergency custody order if evidence shows the felon is prohibited under § 18.2-370.2 from even being around children.
More likely, your attorney will present evidence to the court that the felon’s behavior, words, and actions toward your children are not in their best interests. Specifically, § 20-124.3 outlines conditions a judge uses to determine parental fitness for custody (with our added emphasis):
“2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members…”
Prove that your ex-wife’s life choices and the felon’s behavior are damaging your children and you stand a very strong chance of getting the previous custody order overturned and winning full custody of your children.
The first issue (my ex-wife is dating a felon) is not by itself justification for changing custody, the second issue. The secret is to use the felon-dating issue as one important example of your ex-wife’s unfitness as a parent.
The Firm For Men can help you fight the good fight. Contact us today with your child custody challenge, or telephone us at (757) 383-9184.