Custody Rights: What Happens If a Parent Goes to Jail?

Family dynamics, child welfare, and custody are challenging and emotional issues. Add in parental incarceration, and the matters become further complicated. Many questions about a minor child’s care and custody arise when one parent goes to jail. One central question is, If a parent goes to jail, do they lose custody? 

 

If you or your spouse are incarcerated, child custody and parental rights may be seriously affected. However, not all rights are automatically terminated. Some rights may cease, but others could continue while the parent is in jail. Working with an experienced family law attorney can help you understand the legal implications of parental incarceration.

Impact of a Parental Jail Sentence on Child Custody

If one of the parents goes to jail, do they lose custody of their child? Clearly, an imprisoned parent loses physical custody of their child. Physical custody is physical “possession” of the child—i.e., if you have physical custody, your child is living with you. Therefore, it is impossible for an incarcerated parent to maintain physical custody of their child.

 

So, who gets custody? The parent not in jail may be granted sole custody of the child, but this is not always true. The free parent must also be deemed a fit parent, and if there is a custody order in place, that order may need modification. 

When determining custody and access rights, a Texas court’s primary consideration is the best interest of the child. The court will determine if the free parent can provide the child with a safe, healthy, and stable environment. If the free parent is not fit or there is no other parent, the court may appoint another family member or third party (like a grandparent) as the child’s custodian. If the parent is incarcerated for a short period, a state agency like Child Protective Services may become involved. Such an agency can help if the child needs a temporary or permanent foster placement while waiting for their parent to be released.

Rights to Child Visitation While in Jail

A jailed parent may lose physical custody of their child, but they will not automatically lose all legal custody and visitation rights. Legal custody encompasses decision-making authority, like input about education, religion, and healthcare decisions. The jailed parent may continue to have legal custody and visitation unless the other parent or a state agency files a request to terminate or modify parental rights.  

 

A child may visit the incarcerated parent in jail, but this is often dependent on the co-parent. The free parent is not typically obligated to arrange or allow the child to visit the parent in jail. It is up to that parent to decide if they want to facilitate visitation. An incarcerated parent may hire a lawyer to sue for visitation in jail, but it is a complex process, and it might not be in the best interest of the child.

Terminating parental rights is not automatic and must go through a court-ordered process. The free parent or an agency can argue that the incarcerated parent is no longer capable or fit to have legal custody. If the judge approves the request, the incarcerated parent may lose all legal custody and visitation rights. 

The Type of Crime Can Impact Legal Custody Rights

Since the courts are constantly assessing the best interests of the child, there are some instances where an incarcerated parent’s rights may be terminated due to the nature of the offense. According to Texas law, a parent’s rights may be terminated if there is clear and convincing evidence that they are criminally responsible for the serious injury or death of a child under a series of criminal charges—including murder, assault, sexual assault, etc. The court may also consider the length of the sentence and how prolonged imprisonment might affect the child. Other charges could impact visitation rights or the child’s ability to return to the incarcerated parent’s home upon release. 

Contact The Larson Law Office About Custody Rights During Incarceration

If a parent goes to jail, do they lose custody? Texas family law attorneys at the Larson Law Office can assess your circumstances and help answer this question more definitively. We are experienced family law attorneys who have been helping Texas families navigate complicated child custody cases, including parental incarceration matters, for over 15 years. 

 

We offer compassionate, personalized legal advice, we understand how the courts view the “best interests of the child,” and we can help you protect your child’s welfare and your custodial rights.  

Our firm is Martindale-Hubbell AV Preeminent Peer-Review Rated and has been named to the annual listing of Texas’ Top Rated Lawyers by ALM Media and Law.com since 2012. 

Diana and Erik pride themselves on listening to your needs, creating unique legal strategies, and efficiently and effectively communicating with you to get tailored results. 

 

Contact us today to learn more about how we can assist you with questions about custody and visitation for incarcerated parents.