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Child Custody | Family

Child Custody When a Parent Is in Jail

7 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

One of the child’s parents going to jail will have a direct effect on custody, visitation rights, and child support.

Managing child custody and child support when one parent is in prison can be a complicated matter. It can be made worse by the fact that many people may have the wrong idea about how such custody cases are handled.

For instance, some may assume that just because one parent goes to jail, they automatically lose their parenting and visitation rights, which is not the case. Others may believe that when a parent is incarcerated, they no longer have to pay child support—this is not the case either.

Parents can proactively address issues of custody and child support before incarceration begins. Let’s see what really happens when one of the parents is incarcerated and what the other parent, relatives, or friends will need to do to make changes in custody and file for child support. We will also look into what options the incarcerated parent has for preserving their parenting and visitation rights, and managing financial obligations.

What Happens if the Parent Who Has Primary Custody Goes to Jail?

In most cases, when one parent goes to jail, the other parent will be granted custody of the child or children. While it’s common that the parent not in jail will want to get custody, it’s important to note that this is not always the case, and a judge will make their custody decision considering a set of factors.

If parents share custody of their child or children, the remaining parent will need to file a motion to change the initial custody agreement and request emergency custody of the child. In most cases, their request will be granted.

When making the final custody decision, the judge will also take other factors into consideration, and their ruling will be guided by what’s in the best interest of the child. For example, if a mother gives birth while incarcerated, medical needs dictate that the newborn baby will stay with her for at least some time.

Single Parents in Jail

If the single parent of the child goes to jail and you are a close relative or family friend who wishes to take custody of the child, the procedure will be more complicated. There are several steps you will need to take:

  • The first thing you will need to do is contact the Department of Family and Children’s Services (DFCS) and Child Protective Services (CPS) to let them know that you want to take guardianship of the child and wait for their approval.
  • Next, you will need to file a motion for temporary guardianship. Here, it’s important to state for how long you plan to be the guardian of the child. Otherwise, the guardianship may be granted for the default period of time.
  • Prepare your case. Before you are granted guardianship of a child, you will need to go through the guardianship investigation process. You will need to prove that you will be able to provide a stable and thriving environment for the child. 

What Happens to Visitation Rights if One Parent Goes to Jail?

When a person is incarcerated, they lose many of their civil rights. However, they do not automatically lose their parenting or visitation rights.

The incarcerated parent will remain entitled to their prior level of input on things like education, religious upbringing, or healthcare.

However, while the incarcerated parent will still have the right to be part of their child’s life, this right often exists just on paper. As the child or children won’t be able to visit the incarcerated parent on their own, their ability to communicate will depend solely on the person who has custody. 

There are no laws that oblige the other parent or the child’s guardian to allow or assist with visits to the incarcerated parent. Thus, the decision to arrange jail visits or abstain from them is fully in the hands of the person who has custody of the child. The incarcerated parent may hire a lawyer and initiate a lawsuit to request child visitation in jail. However, these cases tend to be very complicated and very expensive.

The person in custody of the child, on the other hand, may file a request with the judge to terminate the parental and visitation rights of the incarcerated parent. If the judge approves this request, the parent who is currently in jail will lose all rights to their child, including visitation rights. Parents may also come to a shared understanding, whether approved by a judge or not, on this matter.

What Happens to Child Support When One Parent Is in Jail?

Another issue that comes up when one of the parents is incarcerated is the parent’s financial obligations towards their children.

Incarceration doesn’t in itself affect the parent’s obligations to pay child support according to an existing child support order. On the other hand, the child support order may be modified by a judge if the incarcerated parent proves that they do not have enough assets or income to continue to fulfill their financial obligations. Until the judge makes this ruling, the child support order for the incarcerated parent will stay in place.

How can someone in prison pay child support? This depends on the incarcerated parent’s financial situation, but some examples of possible income sources include: existing bank accounts, rental income, income from investment and selling property, income from welfare benefits, and more.

If the incarcerated parent refuses to pay child support, the other parent can file a contempt action against them. The incarcerated parent will then need to prove to the court they have no means to pay child support. However, even if the incarcerated parent is not held in contempt, their financial obligations towards the child will still need to be fulfilled. In this case, the unpaid amount will accumulate and will need to be paid out when the parent’s financial situation improves.

How Can a Child Custody Lawyer Help?

Many child custody cases when one parent is incarcerated are complicated and will require legal assistance. Here are just a few examples of instances when you might need the services of a child custody lawyer:

  • If you are the other parent of the child and want to file for emergency custody
  • If you are a close relative of the child or family friend and want to file for guardianship
  • If you are the other parent of the child and want to file for sole custody
  • If you are the other parent of the child and want to file for child support 
  • If you are the incarcerated parent and want to request visitation rights
  • If you are the incarcerated parent and want to request modifications in your child support order

Are the Services of a Child Custody Lawyer Expensive?

As we’ve mentioned above, child custody cases when one of the parents is in jail can get quite complicated. In many instances, lawyers will need to handle a number of motions and collect a lot of evidence to support the custody or child support case. When a lawyer represents the parent who is in jail, the situation gets even more complex.

For the reasons above, most lawyers will charge a package fee for a whole set of services. The price may start at $3.000 to $5.000 or more. Plus, cases like these often require additional time and extra services, in which case a lawyer may charge you an additional $300 to $500 per hour.

In some cases, however, you don’t need a full package of legal services. Instead, you might need the lawyer to just assist you with certain aspects of your case such as drafting a custody agreement or attending a court hearing.

In this situation, you may benefit from using unbundled legal services, in which a lawyer only handles specific elements of your case for a fraction of the full representation cost. We can put you in touch today with a local child custody lawyer who offers unbundled representation.

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