Your child cannot be taken away from you because the government disagrees with your parenting style. The state must show that you are unfit and that ending the relationship is in the best interests of your child. If a parent abandons their child, for example, a court may rule them unsuitable. Is going to jail considered abandonment? States respond to this question in a variety of ways.
If a parent spends more than six months in prison without seeing their child, several states consider them to have abandoned their child. However, several states are moving away from declaring parental abandonment solely on the basis of incarceration or jail term. Many psychologists and child welfare specialists agree that keeping in touch with incarcerated parents, including visitation, is helpful to children. Authorities and courts assess each situation individually.
If your incarceration is due to your parent-child relationship, the state may try to end your relationship regardless of the duration of your term. For example, the state may pronounce you unfit to be a parent if you are convicted of drug possession and have addiction issues, or if you are convicted of domestic abuse.
You may be able to reclaim your parental rights or custody after you’ve been released from prison in some cases, but this isn’t always possible.
The Supreme Court has concluded that parents have an implied constitutional right to be left alone by the government since our culture places a high value on not interfering with a parent’s upbringing of their children. Before a parent can be pronounced unfit, the state Supreme Court in Arkansas, for example, has decided that “clear and persuasive evidence” is required. That means that a parent’s worth or competence is not determined solely by their time in jail or prison.
For example, in the Arkansas case Lindemood v. Department of Human Services, the court decided that an incarcerated father’s attempts to retain contact with his infant son and his boy’s carers demonstrated his desire to be a father. While being as active a parent as possible while in prison can help, it is not a guarantee that you will keep your parenting rights.
If you are the only guardian of your children, a prison sentence may result in your children being placed in foster care by the courts. The state may attempt to terminate a parent’s rights while they are in prison, depending on many variables such as the length of time spent in foster care and the length of a prison sentence. Many states have added their own standards to the federal Adoption and Safe Families Act, which can force a state to petition for terminating parental rights if a kid has spent 15 of the last 22 months in foster care, for example.
To terminate a parent’s rights to their children, state governments must often file a petition with the family court. This necessitates a court order to terminate such rights, as well as an opportunity for the incarcerated parent to present their case. Working with a family law attorney to help a parent create the best defense against termination could be incredibly advantageous.
If the termination petition is approved, the kid will be available for adoption to a new family. Family members who want to adopt the child are frequently given priority, although courts can also authorize adoptions of people who are not related to the child’s biological family. If the adoption is open, a parent may be able to contact their child.
Custody is not the same as parental rights. Your parental rights do not have to be terminated if you lose primary custody of your child. For example, even if your child does not live with you for the entire year, you may still be entitled to visitation. Determining child custody can be difficult in any situation, but for a parent who wants to keep legal custody, it can be extremely difficult in prison.
Although a parent who spends months or years in prison does not have physical custody of their kid, they may still have legal rights and responsibilities. However, if one parent is convicted of a criminal offense and sentenced to prison, the other parent may petition the family court for sole legal custody.
Child support payments are another factor to consider. Unless they can go to court, show their inability to pay, and obtain a fresh support order, a jailed parent will very certainly be required to pay child support. Otherwise, they risk being held in contempt of court or due backpay.
In many circumstances, the law will not require a custodial parent to continue contact or visitation with their shared children while the other parent is incarcerated. In general, it is in the best interests of the kid to maintain contact with their incarcerated parent. It would be advantageous for the imprisoned parent to reach an agreement with the other parent to ensure that they do not lose touch with their child while serving their term.
Although losing custody does not automatically result in the loss of parental rights, the other parent, like the state, can file a petition to terminate those rights. The court may grant the order if the custodial parent shows that the incarcerated parent has abandoned any engagement in their child’s life or is a danger to the youngster.
Speak with a Child Custody Attorney Right Away.
This was written with the intention of being useful and educational. Even routine legal problems, however, can become complicated and frustrating. A qualified child custody attorney can help you with your specific legal issues, explain the law, and represent you in court. Contacting a local child custody attorney to discuss your individual legal circumstances is the first step.
