Family Law and the Rights of Incarcerated Parents

Getting sentenced to jail time can take you away from your family. This is devastating for parents who must leave their minor child behind. Maintaining a solid parent-child relationship while incarcerated is challenging. You may have to fight for your custody rights.

Even if your child is safe with family members, there are still significant questions about your parental rights while in prison. A prison sentence can affect custody, child visitation, child support, and more. After release from prison, you can hope for a quick reunification.

An experienced family law attorney can explain your legal options. If you have questions about your legal rights after a conviction, talk with an experienced family law attorney.

What Are the Challenges for Incarcerated Parents?

Incarcerated parents are physically separated from their children. If you’re in jail, you cannot care for your children, even if you have sole custody. Instead, someone else will be in charge of your child’s wellbeing. This includes family members, the noncustodial parent, or foster care. Challenges during the parent’s incarceration can consist of:

• Actively participating in the child’s life
• Custody of your child and child visitation
• Communicating with the child’s other parent
• Paying child support
• Termination of parental rights

Who Cares for Your Child While in Prison?

If you have not arranged for who will care for your minor children if you are incarcerated, Child Protective Services may take temporary custody. The noncustodial parent can generally take physical custody of your child while incarcerated.

A non-parent can care for your child as their legal guardian. You can have a relative, family member, or trusted friend. The court must approve the person as the legal guardian to care for the child.

If a parent or guardian is not your child’s caregiver, your child may be placed in foster care. Foster care is for children who face child abuse or neglect or whose parents are unable to care for them. After release from incarceration, you can reunite with your child and get them out of foster care.

How Can Incarcerated Parents Keep Custody of Their Kids?

The court bases child custody decisions on what is in the best interests of the child. The court may remove your child from your custody and place them with someone who will be able to care for the child. This could be foster care, the other parent, grandparent, or other family member.

While incarcerated, custody rights generally depend on whether you want physical or legal custody.

Physical Custody

Physical custody refers to where a child lives. You cannot have physical custody of your child while you’re in prison. You’ll have to find someone else to oversee your child’s care.

The first option is the child’s other parent. You and your co-parent should request a court hearing to finalize the new arrangement.

If the noncustodial parent cannot take custody of the child, you can ask the court to appoint a legal guardian. A legal guardian looks after your child and has the legal authority to make decisions about them. This is usually a grandparent, another relative, or friend.

If a parent, family member, or friend cannot care for your child, your child will go to a non-relative. The local child welfare agency (Child Protective Services, Department of Social Services, etc.) will handle the placement.

Legal Custody

Legal custody allows parents to make decisions about their children. While physical custody isn’t an option during a parent’s incarceration, sharing legal custody could be. You’ll have to show that you can actively participate in decisions about your child’s well-being. The other parent will likely get sole legal custody if you can’t.

Custody After Your Release

After release from prison, you may have to show the family court that you can take care of your child to regain custody. This includes showing that you kept in regular contact and remained part of the child’s life while in prison. Record your visits, phone calls, letters, and meetings about your child’s welfare.

You may also be able to go through counseling or treatment programs while incarcerated. This includes substance abuse treatment, parenting classes, vocational training, and re-entry programs.

How Does Incarceration Affect Visitation Rights for Parents?

If you have visitation rights, these rights may change after incarceration. You may lose your visitation rights while in jail. You can try to petition the court to require visitation so you can visit with your child in jail. Alternatively, you can rely on your connection with the child and help from family members to bring the child to visit when possible.

Do You Have to Pay Child Support While in Prison?

You are responsible for paying according to your child support order, even if you don’t have enough money. In some states, you can have the child support court order suspended while imprisoned. In other states, you may have to have your support order modified before the court will reduce the payments. Generally, you can retroactively change the amount of child support you owe.

How Can Incarcerated Parents Protect Their Parental Rights?

Losing custody does not terminate parental rights. Termination of parental rights is not a simple process. Even in jail, you won’t automatically lose your parental rights. There are limited grounds for terminating your parental rights against your will. If you get notice of a petition to terminate parental rights, you can challenge the petition with the court. Talk to a family law attorney about your options if the other parent wants to take your child away while you are in jail.

Can a Family Law Attorney Help Incarcerated Parents?

Yes. A family law attorney can explain your parenting and custody options if you are incarcerated. It is essential to act fast so your child doesn’t end up all alone. Your attorney can help you find a caregiver for your child, maintain a connection while incarcerated, and help you reunite with your child after release. Temporarily losing legal custody and visitation rights with your child because of incarceration is devastating. You may have to rely on support from friends, family members, the other parent, or your child to maintain contact. After being sentenced to jail, speak to an experienced family lawyer for legal advice about your rights.