Child Custody and Incarceration: Custody Rights When a Parent is in Jail

When a parent is in jail or sent to prison, how will that affect custody of the children? Unfortunately, this is an issue that comes up when a parent gets in serious trouble with the law. According to statistics on child custody and incarceration by the Annie E. Casey Foundation 1, 55% of state prisoners and 63% of federal prisoners are parents of minor children. 

By WomansDivorce | Answers by Brette Sember, J.D.

How custody is affected when a parent is incarcerated

If custody has not yet been determined, a felony conviction can have an impact. When deciding what is best for the children, the court can take into consideration a parent’s record to determine if they are morally fit, are able to provide a stable home, or have a drug or alcohol problem. In fact, parental rights can even be terminated if the parent is incarcerated for violence against the child or another family member, according to ChildWelfare.gov 2.

In situations not involving family violence, an incarcerated parent wouldn’t be able to get physical custody of their child, but may be able to keep shared parental responsibility. This can present a problem for the parent with physical custody of the child. What happens if the child needs to undergo an elective surgery? The custodial parent would need to get approval from the incarcerated parent for the surgery to occur.

And what happens after that parent is released? These are just some of the questions that come up. If you are facing this type of situation, you need to contact an experienced family law attorney to help protect your rights. Below are answers to other questions regarding custody issues when a parent has been in jail or prison.

Child Custody and Incarceration FAQs

Custody When One Parent is in Jail:

Criminal Convictions and Child Custody

Issues During Incarceration

Custody Issues after Incarceration

Visitation Rights and Criminal Records

Custody When One Parent is in Jail

Will I get custody if their father is in jail?

Denise's Question: If a person goes to jail and the other person files for a divorce does the person filing for a divorce automatically get custody over any children they have together?

Brette's Answer: Yes, it's pretty automatic if the other parent is in jail.

Can I go get my son if my ex gets sent to jail?

Krystal's Question: My ex just went to jail and my son is staying with his Dad's girlfriend. I do have visitation, and she is not his mother. Can I go get my son?

Brette's Answer: If he is in jail, you should have custody. When your child is not living with a parent, that is a red flag to the court. If the girlfriend won't give him to you, you might have to call the police. You will definitely need to go back to court to get the order changed to reflect the new situation.

Would the father get custody if the mom goes to jail?

M's Question: If a mother goes to jail and she has custody of the kids and their father has visitation rights, can the father take the children?

Brette's Answer: Yes. Courts prefer to place the children in the custody of a parent, rather than another relative in a case like that, assuming the father is able to be a suitable parent.

Criminal Convictions and Child Custody

If a parent goes to jail, do they lose custody?

Leann's Question: My ex has sole legal custody, but he just went to prison. How can I get my daughter back?

Brette's Answer: File for custody. Sounds like you're in a good position.

Can I get temporary sole custody if he goes to trial for murder?

Kathy's Question: I have been the primary domicile parent for thirteen years. My daughter is 15 yrs. of age now and something horrible has happened. My ex-husband remarried ten years ago to a wonderful woman and she passed away last year. My ex said it was a suicide but after a year....the FBI is investigating him for possible murder!! My daughter DOES go every other weekend to visit her father. If there is a trial, can I get emergency temporary sole custody? I DO NOT want my daughter around him if this goes down......please help me with my options for my daughters sake!!

Brette's Answer: Yes, you should be able to get temporary sole custody now (if there is anything official you can show the court to indicate he is a suspect) and during the trial, and sole custody if he is convicted.

How is custody affected if he's been convicted of a crime?

Tasha's Question: I am going through a divorce. If my husband has a criminal record, how would this affect a custody battle?

Brette's Answer: Criminal records and convictions always have an impact on custody. I can't tell you what the result will be because custody is decided by looking at all of the factors and a decision is made based on what is best for the child. A parent with a record is at a disadvantage.

Can I get sole custody if my ex is in prison?

Amy's Question: My ex and I agreed to joint custody in our divorce a couple of years ago. Recently he has been incarcerated in a state prison for child endangerment because he put his 13 year old nephew behind the wheel to drive while he was intoxicated. He also has a long history of alcohol abuse and DUI's and can no longer drive without interlock system in his vehicle. Do you think I would have a chance at sole custody under the circumstances?

Brette's Answer: Yes, you should get sole custody. This is common when a parent is incarcerated.

Can I get sole custody if he’s in prison and not on the birth certificate?

Jessica's Question: I was not married to my daughter‘s father, however he is in prison and is not on the birth certificate. She is two years old now and I would like to file for sole legal custody while he is in prison. Will I have any problems doing so?

Brette's Answer: You should talk with an attorney in your state who can explain the pros and cons of doing so. Once paternity is established, he will have the right to seek visitation in the future.

Do I have to serve him with sole custody papers if he's in prison?

Rita's Question: My ex-husband is in prison for touching kids and other things. Would I need to send him a copy of my motion if I file for Sole Custody? I don't want him to make any decisions for my child.

Brette's Answer: He would need to receive service and have the opportunity to respond, but it's unlikely the court would not give you sole custody in this situation.

Could he get sole custody if he's a convicted felon?

Kareen's Question: Can he get sole custody if he has a felony and owes thousands of dollars in back child support?

Brette's Answer: Having a felony conviction is a serious strike against him; however custody is decided by looking at all of the circumstances in the case. Child support does not affect custody.

Can he get custody with his criminal background?

Gerri's Question: My husband is a convicted felon that served 18 months in prison. I suspect that he is smoking weed again, and last year I found a bag hidden in his tool box. My mother made me flush it down the toilet instead of calling the police. He is going through something again ... he recently left town to see a friend from prison. He said that if we end up in divorce, he will move away and have custody of the girls 6 months at a time. Can he do this?

Brette's Answer: It's unlikely he would get custody of your children, or extended visitation, given his record and the fact that you can testify about what you found in his possession. You and your children need to get away from his influence. It is not healthy for your kids to grow up in the midst of criminal activity. It's also very dangerous for you, since you could be charged as an accessory if you help him in any way. See an attorney and get a temporary order of custody. Good luck.

Can he get shared custody if he's in prison?

Maria's Question: My husband is currently in prison for drugs and will be eligible for parole in a couple of years. I'm really scared that when he gets out he will try to get shared custody of the kids. He has been abusive to me and has had several drug charges in the past. It would devastating if the Judge agreed to let him have shared custody, especially since he has not seen his children for six years and has never provided anything for them. Would I be able to file for sole custody of my two children?

Brette's Answer: You have nothing to worry about. No one is going to give shared custody to someone who is in prison for the next two years. You'll most likely get sole custody.

Issues During Incarceration

Is it kidnapping if I visit my family out of state when he's in prison?

Adria's Question: Can the father get me for kidnapping our son if he is in prison for the next 20 years and I am going to visit family in a different state but will be returning?

Brette's Answer: If he's in prison you need a sole order of custody and should get it immediately.

Can I move if he will be in prison for 5 years?

Amber's Question: I have sole physical custody and we have joint legal custody. Can I move out of state without his permission if he is incarcerated in a prison for 5 years?

Brette's Answer: It depends on what the visitation schedule is and whether he will want to continue it.

Custody Issues after Incarceration

How can I get custody if I've been in prison?

Jessica's Question: When I went to prison, I gave my husband legal custody of our children. Now we are divorced, and he says I will never get them back because he has legal custody. I am doing good now and I am ready to fight for them. What are my chances of getting them back or sharing custody?

Brette's Answer: You need to be able to show you have a stable home and a job and can support them. If you have a parole officer who can testify as to how well you are doing, that would help. You need to have a plan for where they would go to school, how often you would arrange visitation, and how you would parent.

My ex wants to return custody to me after I was released from prison.

Lily's Question: I was arrested and sentenced to prison four years ago. While incarcerated, the father decided to fight for custody of our child and won. I was released in April and now he wants to return full custody back to me. Do I need a lawyer? How do I go about doing this?

Brette's Answer: You can both go to family court. One of you files for modification, then you simply present your agreement to the court. You can definitely get an attorney if you want to.

Could he get custody after being in prison for the last nine years?

April's Question: I have had sole legal and physical custody since my daughter was a baby. She is now 10 years old and her father was incarcerated for 9.5 of those years. After I filed for child support, he filed for full custody. I agree with him having visitation but not any form of custody. Do you think he has a chance?

Brette's Answer: Nope! Very, very, very unlikely. Any parent has the right to ask for custody but the decision is made based on the best interests of the child. If you have a healthy, stable home life for your child you have little to fear. 

How can I make sure I get sole custody when he's released?

Jean's Question: I have a 1 year old son and his father is currently in prison. I recently got an annulment from his father but nothing was stated in the case about our son. As of right now I have our son 100% of the time and before my ex went to prison he only saw him a couple times. His file is a mile long and he has an alcohol and pot problem. How can I make sure I get sole custody when he gets out?

Brette's Answer: File for custody. There will be no question about obtaining when he is in prison and the order will stand when he gets out unless he tries to seek modification.

Does he still have joint custody after being released on bail?

Brittany's Question: My ex-husband and I had joint custody before he went to jail. After serving his time for a DUI they sent him to immigration detention during his immigration process. He made bail with $6000 to get out to fight his immigration process. Does he still have joint custody right after he is released?

Brette's Answer:  Yes, unless the order has been changed while he was away.

Visitation Rights and Criminal Records

How is visitation affected if he gets sent to prison?

Sonia's Question: The father of my children is now in prison. Prior to that, we had joint custody with primary residence with me. Can he now have visitation rights? Is any previous agreement for visitation affected?

Brette's Answer: The order stands unless you ask for it to be changed. And it very likely would be changed since there has been a change in circumstances. You definitely would get sole legal custody. Visitation is going to depend on how far away he is, what he was convicted of, and how old your children are and how well they would be able to handle prison visits.

Can he get visitation if he's in prison?

Sherry's Question: My ex has been incarcerated since my five year old daughter was five months old. He went to prison for crimes he committed against me (kidnapping and assault with intent to kill), and also has a prior conviction for 2nd degree murder. He has 2 plus years to serve. I am getting nervous and feel I should file for sole custody before he is released. Is there any possibility that a judge can order visitation even though he has not seen her since this crime was committed.

Brette's Answer: No. Visitation won't be ordered while he is in prison. It is doubtful it would be after his release also. You need to get a court order giving you sole custody.

Can he get visitation after he gets out of prison for child abuse?

Brittany's Question: My daughter is 3 years old and her father has never had anything to do with her. I have soul custody and visitation was as both parties can agree upon, but he never called me for visitation. He is currently in prison for attempted rape of a 14 year old and is due to get out within the next 6 months. If he asks for visitation this time what should I do? I do not feel comfortable letting him take my daughter.

Brette's Answer: You should tell him no. Under your order, you don't have to agree to visitation. If he has a problem with that, it's up to him to petition the court to modify the order, which would seem unlikely since he's now a convicted child abuser.

Could he get visitation changed once he’s out of prison?

Merlissa's Question: Can my ex take me back to court to change visitation after 10 years of no visitation or child support? He was in prison for federal charges.

Brette's Answer: Yes. Generally if there has been a change in circumstances the case can be reopened. 

Can he get visitation if he has a drug conviction and is abusive?

Leslie's Question: I have a 4 year old son whose biological father left the area after his first birthday. Since then he has had no contact at all with my son or provided any financial support. He has a felony charge of cocaine possession for which he is serving 3 years of probation. I contacted him recently to ask if he would sign over his rights to my fiancé, who hopes to adopt my son. Now he is stating that he is going to court so that he can see "his" son. He has been verbally and physically abusive in the past, and I honestly fear for all of our safety when it comes to his violent temper. What measures can I take to ensure my son remains with me?

Brette's Answer: This is a difficult situation. Children have a right to know their parents, however if he presents a danger to the child, that is a problem. It's possible the court could order supervised visitation and see how things go. If you are afraid for your safety and that of your child you need to make that clear to the court. All you can do is tell the court your side of the story and present as much information as you can about this man's life history. Ask that a Law Guardian or Guardian ad litem be appointed to represent your son and get an attorney for yourself if you can afford it.

I’m afraid he’ll try to harm us while he’s on probation.

Christina's Question: My ex-husband was recently convicted in Oklahoma for felony animal abuse and is on probation for 5 years. We live in Texas and have very little contact with him, but we are scared that he may violate his probation and try to harm us. We technically have joint conservatorship what are my options?

Brette's Answer: You can file for modification. You may also be able to get an order of protection. You should talk to an attorney who handles family law matters near you for how to proceed.

Brette 144x162Brette Sember Family Law Expert