Incarceration – how does it impact child custody?

On Behalf of | Jan 3, 2023 | Child Custody |

When a couple that shares a child files for divorce, the court will come up with a custody and parenting plan. This may involve awarding joint custody or giving primary custody to one parent while the other is granted visitation rights. But what happens when one parent is incarcerated after the issuance of the custody order?

Navigating child custody following either parent’s incarceration can be quite complex, especially if one or both parties have the wrong idea about how to handle such cases. Obviously, the existing custody and parenting plan cannot be sustained when one parent is away in jail. So what happens?

If the parent with the primary custody is incarcerated

It is a common assumption that one parent’s incarceration will automatically mean that the other parent becomes the sole custodian of the child. However, this is not always the case. The court will take a set of factors (like the child’s relationship with the non-custodial parent and location) into account when making a custody decision. That said, if the parents share custody, then the remaining parent will need to petition the court for custody modification.

Incarceration and visitation rights

When a person is jailed, they automatically lose most of their freedoms and civil rights. However, incarceration, in and of itself, does not amount to the loss of parenting or visitation rights. As such, an incarcerated parent may still have the right to be involved in their child’s welfare.

 Certain charges can complicate matters

If a parent is convicted of more serious charges like sexual assault, violent crimes like assault and murder or child abuse, then their parental rights can be in jeopardy. These charges can also impact future custody or visitation efforts if the court deems the parent in question a threat to the child’s best interests.

Child custody when one parent is jailed can be complicated. Find out how you can safeguard your rights and interests while litigating a child custody matter.