Can a Parent Lose Their Right to a Child While in Prison?

The government cannot take away your child just 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.

Going to prison can mean you can’t be around to care for your child. That doesn’t necessarily mean you are abandoning your kids. Parental rights laws are different in every state. For legal advice about your situation, talk to a child custody lawyer in your area.

Who Can Terminate My Parental Rights?

In most cases, Child Protective Services (CPS) or the other parent will file a petition to terminate parental rights. When CPS files a petition, it is usually after alleged abuse, neglect, or drug or alcohol dependency. If CPS thinks a parent is unfit to care for their child, they can try to terminate the parent’s rights.

A parent can also file a petition to terminate parental rights if the other parent has abandoned the child. If you are in prison for a long period of time, the other parent can claim terminating parental rights is in the best interests of the child.

When Can the State Terminate Parental Rights?

The court won’t just cut off your rights just because the other parent asks them to. The state takes parenting rights very seriously. There are only limited situations when the court can terminate parenting rights, including:

• Abandonment
• Child abuse
• Conviction for certain violent felonies
• Drug or alcohol dependency

What Crimes Can Make Me Lose Parenting Rights?

You won’t lose your parenting rights for any crime. A drunk driving conviction, drug possession, or petty theft are usually not grounds for losing your rights. More serious violent crimes or crimes against a child can result in the state filing a petition to take away your rights. Serious criminal charges include:

• Child sexual abuse
• Kidnapping
• Murder
• Manslaughter

Is a Prison Sentence Considered Abandonment?

Abandonment is grounds for termination of parental rights. Serving time in prison can be abandonment, depending on the amount of time and other circumstances. Under federal law, if your child is in foster care for 15 of the last 22 months, it could be abandonment.

Some states consider incarceration as the abandonment of a child, including Florida and Tennessee. However, you may be able to maintain your parenting rights, even while incarcerated. Paying child support and staying in contact with the child, such as with phone calls, are ways to show you don’t intend to abandon your child.

Many psychologists and child welfare experts recognize that a child’s ability to maintain contact with incarcerated parents is beneficial for a child’s well-being Even child visitation while in prison can be better than no contact with the child’s life. Family courts can evaluate this on a case-by-case basis.

What Happens if the State Terminates Parental Rights?

If you’re the sole guardian of your children and sentenced to prison, CPS may place your child in foster care or with another caregiver, such as a grandparent. If you have family members who can care for your child during that time, the state may prefer to keep the child with the family.

State governments have to file a petition with the family court to terminate your parental rights to your children. This requires a court order to terminate those rights and gives the jailed parent an opportunity to plead their case. The court can’t take away your rights without giving you a chance to respond.

If you get notice of a court action to terminate your parenting rights, talk to a family law attorney. An experienced lawyer can help you present a strong defense to keep your parental rights.

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 other people.

Can I Lose Custody of My Child While in Prison?

If you’re sentenced to prison, you will lose physical custody of your child. Child custody is a separate issue from parental rights. You can lose primary custody of your child without losing your parental rights. For example, your child may not live with you at all during the year but you could still have the right to visitation.

A person spending months or years in jail can’t have physical custody of their child. However, incarcerated parents can still have legal rights and responsibilities.

If you have joint physical custody with the child’s other parent, the other parent can get temporary physical custody while you are in prison. The other parent may also use this as an opportunity to try and get sole custody by claiming you are an unfit parent.

Determining child custody can be contentious. It can be even more complicated when one parent is in prison. If the criminal court convicts and sentences you to prison, the other parent may use this as an opportunity to file for sole legal custody.

Do I Still Have to Pay Child Support While in Prison?

Another issue to consider is child support payments. An incarcerated parent will likely still need to make child support payments unless they can get a new child support order. Otherwise, they could end up owing backpay or be in contempt of court.

What Are My Visitation Rights While in Prison?

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 kids during the sentence. However, some states won’t require a custodial parent to maintain contact between an imprisoned parent and their shared children.

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. If the custodial parent demonstrates that the jailed parent has abandoned their child, or that they are a danger to the child, the court may terminate the parent’s rights.

A criminal conviction can complicate custody arrangements and parenting rights. Be prepared to fight for custody of the children. Talk to a child custody lawyer about your parenting and custody rights after a jail sentence.