Can parents in jail have custody rights?

prisoner in jail cell

If you are a parent in jail custody rights may be a big concern for you. You may be wondering if a parent goes to jail do they lose custody automatically or forever? On the other hand, if your child’s other parent is incarcerated, you may want to know if terminating the parental rights of incarcerated father or mother is possible or whether you will need to bring your child to visit a parent in jail. Grandparents have questions about their rights in these scenarios, too. We share insight on these topics and more below.

Do incarcerated parents have any parental rights?

When it comes to parent-in-jail custody rights, it’s generally impossible for a parent in jail or prison for an extended period of time to maintain custody of a child. Obviously, that parent is physically unable to be present and care for the child. It’s also unlikely that an incarcerated parent will be able to convince a judge to allow him or her to have parental rights, which allow that parent to make decisions pertaining to the child while incarcerated.

Think about it. If you’re in jail or prison for a year or more, how are you going to make informed decisions for your child? You may not even be allowed to see your kids while in prison, and you certainly won’t be in a position to talk to the child’s teacher about educational issues or go to medical appointments with your child, right? So why would a judge agree to allow you to be the parent who makes important decisions for your child? If granting an incarcerated parent parental rights would not be in the best interest of the child, the judge won’t agree to it.

The reality is you probably won’t get many if any rights when it comes to your children until after incarceration ends. In most cases, the other parent (or guardian/conservator) will end up being granted the right to make all the decisions. Not only can you expect not to have any access to your kids, the courts generally will not require the other parent to bring the child up to the jail or prison for visits. Those scenarios typically just don’t happen.

When can you terminate an incarcerated parents rights?

It’s very difficult to terminate parental rights in Texas, even when that parent has been incarcerated. Texas Family Code Chapter 161, which covers the grounds for involuntarily terminating parental rights, stipulates there may be grounds to terminate parental rights if the parent has been convicted of committing specific crimes. These include crimes that caused the death or serious injury of a child, among others.

Terminating the rights of a parent who has been convicted of a non-violent crime won’t be that easy, especially if that parent won’t voluntarily relinquish parental rights. In the state of Texas, it is presumed that having a relationship with both parents is in the best interest of a child, so the other parent would have to overcome that presumption—with clear and convincing evidence—in order to terminate the incarcerated parent’s parental rights.

If you believe terminating the parental rights of your child’s incarcerated parent is in the best interest of your child, we strongly recommend you speak with a family law attorney familiar with Texas laws regarding the termination of parental rights. You don’t want to waste time and money trying to terminate parental rights if you can’t prove you have the grounds to do so.

How do the courts approach child custody when one parent is in jail?

If the other parent (or legal guardian) has been sharing custody with the parent who is now incarcerated, that parent should speak with a family law attorney to discuss the next steps. What often occurs in cases where a parent is incarcerated is that parent won’t be able to appear in court for a hearing or final trial about custody matters. Failure to appear in court usually allows the other parent to win the case by default.

If the incarcerated parent doesn’t get to court (though some parents do manage to get there), the court usually awards managing conservatorship to the parent who isn’t in prison or jail. Generally, default cases also end up with the incarcerated parent having no access to their kids.

However, some parents will agree to allow some form of possession once the incarcerated parent is released from jail or prison. Oftentimes, these arrangements start with supervised access through family court services, as long as the parent wasn’t serving time for an egregious offense such as those related to controlled substances, family violence, felony assault or neglect of a child, among others.

Some fathers ask us: Can a father get custody of his child if the mother is in jail? If you’re a dad who has been sharing custody with the mother of your children, and she’ll be spending a good chunk of time in jail or prison, you should contact an attorney to learn about your options and father’s rights. Just as a mother would have the right to request sole custody in Texas of her child when the father has been incarcerated, a father would have the same rights when the shoe is on the other foot.

What happens to a child when a parent goes to jail who has sole custody?

If there is no other parent or guardian in the picture, the child will likely be put into foster care. Depending on the length of parent’s sentence and severity of the crime in question, the Department of Child Protective Services may eventually help arrange for the child to be adopted.

Of course, family members often step in to care for a child when a parent is sent to jail or prison. Grandparents, aunts, uncles, siblings and other interested parties (like a close friend of the parent) can file a petition with the court to seek temporary custody (conservatorship) of a child until the parent is released and eventually seek permanent custody if the parent will be serving a long sentence or there are grounds to terminate the parent’s parental rights.

What are a grandparent’s rights when a parent is in jail?

Our firm frequently receives inquiries about grandparents’ rights in Texas. Essentially, grandparents do not have any rights in the state of Texas. However, they can petition the court for access or conservatorship (custody) of a grandchild under certain circumstances. The state—per Texas Family Code Sections 153.432-153.434, Subchapter H—is very clear regarding when a court may grant a grandparent “reasonable possession of or access to a grandchild.”

In Texas there is a presumption that a child’s parent should be the primary parent and have access to their child as long as they are a fit parent. A grandparent would need to prove, based on clear and convincing evidence, that the grandchild’s parent is an unfit parent and meet other criteria. A judge may award Texas grandparents visitation or conservatorship (custody) of a grandchild, provided:

1). At the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;

2). The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and

3). Finally, a grandparent requesting possession of or access to the child must be a parent of a parent of the child and that parent:

  • (a) has been incarcerated 3 months preceding the filing of the petition;
  • (b) has been found by a court to be incompetent;
  • (c) is dead; or
  • (d) does not have actual or court-ordered possession of or access to the child.

In truth, grandparents must reach a very high bar in order to gain access and custody to a grandchild. However, if the grandparents have been playing an important role in the child’s life already and regularly see and care for the child, the legal hurdles will be easier to overcome.

In fact, Texas Family Code 102.003 does afford an exception to the “significant impairment” standard. If a grandparent files an original suit within 90 days of the grandchild having resided with them for six months, the grandparent may not be required to meet the “significant impairment” standard.

On the other hand, grandparents who have never met their grandchild before and now want to swoop in and get custody will have a very difficult time proving denial of possession or access to their grandchild will be harmful to the child.

Regaining custody after incarceration: How it works

If you have been incarcerated and want to regain custody of your child, the onus will be on you to take the appropriate steps to clean up your act and get more access to your kids, and if everything goes smoothly, regain custody.

As your release date approaches, it’s critical to speak with a family law attorney about your options. Just because you have been convicted of a crime and spent time in jail or prison doesn’t mean that you can’t be a good parent in the future. It just means you’re going to have to jump through some hoops to do it.

Now, regaining access and custody may not be an option if you committed an egregious crime or your parental rights have been terminated. However, if you’ve done your time and can show you have cleaned up your act (which will take time and effort on your part), there is hope.

You will likely need to start out with some sort of supervised visitation arrangement, where you visit with your child in the presence of a representative of family services or a trusted family member. Provided you go on to live a law-abiding life and continue to show you are fit to parent, you may be able to go back to court to request more lenient arrangements (like overnight visits) and eventually seek shared child custody in Texas, such as expanded standard visitation.

Parent in jail custody rights vary depending on the circumstances

If you are facing incarceration or are already incarcerated and want to learn more about your options and rights as a parent, it’s important to seek legal guidance from child custody lawyers as soon as possible. Likewise, if you are the other parent or an interested party (like a grandparent or family member) with questions about access to and/or custody of a child of an incarcerated parent, timing is also critical, so be sure to speak with an attorney right away.

The family law attorneys at the Sisemore Law Firm in Fort Worth are here to help. We’ve represented parents on both sides, as well as grandparents looking out for the best interests of their grandchildren. To schedule a confidential consultation with our firm, call our office at (817) 336-4444 or schedule an appointment online

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