Volume 75, Number 3

June 2000

Not in Front of the Children: Prohibition on Child Custody as Civil Branding for Criminal Activity

Deborah Ahrens

During the past twenty years, several states have implemented statutory and common law presumptions against child custody for persons convicted of selected crimes. In this Note Deborah Ahrens argues that these measures represent an effort to mark convicted persons socially, rather than an attempt to protect children. Because the “best interest of tire child” standard currently permits courts to take into account any factors which affect child well-being when awarding custody, and because conduct considered under new law includes conduct outside the parenting ambit, statutory and common law presumptions operate to brand convicted persons as “other.” Ahrens analogizes new child custody provisions to other forms of collateral civil punishment for convicted persons, including disenfranchisement and deportation. The Note concludes that because these legal measures assume that the sort of person who would commit a crime is the sort of person who would harm a child-absent any evidence that the parent poses a danger to the child-parents convicted of selected crimes are unjustly denied child custody.