Custody & Visitation Law
The government cannot take away your child only because it does not agree with your parenting style. The state must prove that you are unfit and that severing the relationship is in your child's best interests. One of the ways a court may find a parent unfit is if they abandoned their child. Does going to prison qualify as abandonment? States answer this question differently.
Some states consider a parent as having abandoned their child if they serve over six months in prison and do not see their child at all during that time. But many states are moving away from using prison or jail time as the only reason to declare parental abandonment. Many psychologists and child welfare experts recognize that a child's ability to maintain contact with incarcerated parents, including visitation, is beneficial for kids. Authorities and courts evaluate this on a case-by-case basis.
Regardless of the length of your sentence, if the incarceration is related to your parent-child relationship the state may still try to sever your relationship. For example, if you are convicted of drug possession and have issues with addiction, or you are convicted of domestic abuse, the state may use that as a reason to declare you unfit to be a parent.
In some circumstances, you may be able to restore your parental rights or regain custody once you're released from prison, but this won't always be an option.
Because our society places a high priority on not interfering with a parent's upbringing of their children, the Supreme Court has ruled that parents have an implied constitutional right to be left alone by the government. In Arkansas, for example, the state Supreme Court ruled this right requires "clear and convincing evidence" before a parent is declared unfit. That means time in jail or prison alone does not indicate a parent's worth or ability.
In the Arkansas trial of Lindemood v. Department of Human Services, for example, the court determined that a jailed father's attempts to maintain contact with his infant son and his son's caretakers indicated his desire to remain a father. This case shows that being as active a parent as possible while in prison can help, although it is not a guarantee you will retain parental rights.
If you're the sole guardian of your children, a prison sentence could lead to the courts placing your children in foster care. Depending on different factors, such as the length of time spent in foster care and the length of a prison sentence, the state may push to terminate a parent's rights while they're in jail. The federal Adoption and Safe Families Act can require a state to petition for terminating parental rights if a child has spent 15 of the last 22 months in foster care, for example, and many states have added their own requirements to these rules.
Typically, state governments have to file a petition with the family court to terminate a parent's rights to their children. This requires a court order to terminate those rights and gives the jailed parent an opportunity to plead their case. Working with a family law attorney could be extremely beneficial to help a parent craft the best defense against termination.
If the termination petition is successful, the child becomes eligible for adoption to another family. Courts often give preference to family members who want to adopt the child, but courts can also approve adoptions to people unknown to the child's biological family. A parent may be able to contact their child if it is an open adoption.
Custody is a separate issue from parental rights. You can lose primary custody of your child without having your parental rights terminated. For example, your child may not live with you at all during the year, but you could still have the right to visitation. Determining child custody can be contentious under any circumstances, but prison can be especially challenging for a parent who wants to retain legal custody.
A person spending months or years in jail can't have physical custody of their child, but they could still have legal rights and responsibilities. If one parent was convicted of a criminal charge and sentenced to prison, though, the other parent could file for sole legal custody through the family court system.
Another issue to consider is child support payments. An incarcerated parent will likely still need to make child support payments unless they can go to court, prove their inability to pay, and get a new support order. Otherwise, they could end up owing backpay or be held in contempt of court.
In many cases, the law won't require a custodial parent to maintain contact or visitation between an imprisoned parent and their shared children. In general, it's considered in the child's best interest to have continued contact with their incarcerated parent. It would be beneficial for the jailed parent to agree with the other parent to make sure they won't lose all contact with their kid during their sentence.
Losing custody won't automatically cause someone to lose their rights to their children, but the other parent could file a petition to end those rights, much like the state could. If the custodial parent demonstrates that the jailed parent has abandoned any involvement in their kid's life, or that they are a danger to the child, the court may grant that order.