Child Custody When One Parent is in Jail?

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By Divorce & Finance

Custody of child document when one parent is in jailChild custody when one parent is in jail can be a complicated matter. To many, it sounds logical that when one parent gets locked up in prison, they lose their parental rights. However, this is not always the case.

Let’s look into what happens when a custodial parent goes to jail, how to get child custody when the custodial parent is incarcerated, what happens to child support if the supporting parent is in prison, and other valuable information regarding this situation.

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Key Points

  1. Incarcerated parents don’t automatically lose visitation and parenting rights.
  2. To legally terminate an incarcerated parent’s rights, the other parent must file a formal request.
  3. The non-incarcerated parent isn’t obligated to allow their child to visit the imprisoned parent.
  4. Child custody decisions, when a parent is in jail, are based on factors such as child’s age, parents’ lifestyles, and the bond between child and parent.
  5. Child protective services may grant custody to the other parent or a close family member, but no custody is automatic.
  6. To get custody when the custodial parent is jailed, one can contact agencies like DFCS or CPS, file for temporary guardianship, and gather evidence of their ability to care for the child.
  7. Child support doesn’t automatically stop for an incarcerated parent; they must still pay if they have assets or income. Any unpaid amount becomes arrears.
  8. Mothers can generally get full custody if the father is incarcerated, and vice-versa, but the incarcerated parent may retain visitation rights.
  9. Child support arrears will accumulate if the incarcerated parent doesn’t pay, but they are obligated to pay once released.
  10. Legal guidance is crucial in child custody situations involving incarcerated parents, ensuring the child’s best interests are served.

Visitation and Parenting Rights

A parent might lose other civil rights when they go to prison, but visitation and parenting rights are not among those they automatically lose when they get incarcerated.

In many cases, the custodial parent must file a formal request before a judge to legally terminate the incarnated parent’s rights over the child, including visitation. This means that the parent in jail will no longer have any rights over their child, including any right to visit the child.

If this is not the case, the locked-up parent will still be able to assist and have a say over their child’s life. However, the law considers this a mere technicality on paper since the child won’t be able to drive and visit their locked-up parent in jail. Instead, children must rely on the other parent to take them there.

No laws are obliging the non-incarnated parent to allow their children to contact or visit the incarnated parent. This decision depends solely on the non-incarnated parent. The imprisoned parent could hire a lawyer and file a lawsuit requesting child visits at the jail, but this will cost a massive amount of money and is not always the most practical option.

The non-incarcerated parent will still have to get permission from the parent in jail if their child has to undergo surgery or other significant events. However, the out-of-jail parent can request sole legal custody from the judge to make decisions without the other parent.

What Happens When a Custodial Parent Goes to Jail?

Jail sentences can pose many complications to someone’s life. And when the locked-up parent has primary custody, it affects even more lives than just their own.

Child custody decisions are not easy and might lead to complications, especially when the custodial parent is incarcerated.

What happens to children when one of their parents goes to jail and is eligible to take custody?

Before Getting Locked-up

As a general rule, the judge will take custody decisions based on the best interests of the child. The primary concern of a judge is always the welfare of the children involved.

When determining who will be the child’s primary caretaker, the court will consider the following:

  • The child’s sex, age and medical, mental and psychological history
  • Each parent’s ability to support children financially and physically (i.e., clothing, food, medical care, shelter, etc.)
  • The child’s preferences (usually when the child is 12 years old and above)
  • The parents’ preferences and wishes
  • Each parent’s habits and lifestyles (i.e., smoking, drugs, excessive drinking, etc.)
  • The emotional bond or relationship that the child has with each parent
  • The willingness of each parent to support their child’s relationship and bond with the other parent
  • The lifestyle that the child enjoys at the moment
  • The required adjustment level in case the child has to move to a new city, state, school, shelter, etc.

After the Parent Enters Jail

The judge will not take automatic custody decisions when the custodial parent enters jail. Determining child custody will be based on some or all of the factors mentioned above. The process will be a bit different for each case since only one parent is present.

Child social services and child protective services will most probably consider giving custody of the child to the other parent or to another close family member. However, they will come up with a decision in the child’s best interests, which means that no one will get custody by default.

If your spouse goes to jail and you’re seeking sole custody, then it is best to get help from an experienced family attorney. On the other hand, if you go to jail and are concerned about your child’s custody, contacting a skilled family lawyer is your best option.

How To Get Custody of a Child When a Custodial Parent Is in Jail?

Custodian parent going to jailYou must take several necessary steps if you’re seeking custody after your custodial spouse has been incarcerated. If you share custody with your spouse, you will be able to file a motion to modify the custody agreement and request the court to protect your child from their locked-up parent. In most cases, you’ll be able to file for emergency custody.

If you are not the other parent and a single parent who raised the child is now in jail, then here are some crucial steps you should take:

  • Contact the appropriate agency: In most states, you need to get in touch with the Department of Family and Children’s Services (DFCS) and Child Protective Services (CPS). In most cases where the other parent is not available, DFCS or CPS will take temporary custody. Make sure to notify them that you are a close friend or relative and you’re interested in taking guardianship. After that, you need to wait for approval from the DFCS or CPS.
  • File a motion for temporary guardianship: You must do this before a family court. The petition should clearly state for how long you are seeking guardianship. If you fail to do that, the judge will grant you guardianship for a pre-set period which may disrupt the child’s life.
  • Prepare for the guardianship investigation process: Keep in mind that you will have to answer specific questions about guardianship. If the child is already living with you, the judge might grant guardianship after only a short investigation. On the other hand, if the child is not living with you, then the investigation process might take longer and become more complicated because there are more facts that need to be established.
  • Gather all the necessary evidence: You must prove to the court your ability to care for the child and to provide them a loving and caring shelter. Most guardianship cases do not require a hearing, but you also need to be prepared in case you are called to present your case before the court. Keep in mind that if some other qualified person seeks guardianship, you will need to prove to the court why you are the better option (i.e., why you can provide a better home for the child).

What Happens to Child Support if the Supporting Parent Is in Jail?

The court may order the child’s incarcerated parent to pay child support while in jail. However, if the incarcerated parent proves that they do not have enough assets or income to pay support, then the judge will not order the amount that was set in the Child Support Guidelines Worksheet.

If you are on welfare, the Department of Revenue Child Support Enforcement Division has the right to collect child support. They will order child support in any situation unless you give them a valid reason not to (i.e., the supporting parent was violent towards you). They treat cases where the supportive parent is in jail similar to any other case.

Remember that being in prison does not necessarily change or end any existing child support order. Only a judge has the power to modify a child’s support order. Thus, if the incarcerated parent has enough assets or income to use for child support, they must continue to provide support to their children. In other words, the child support order will stay in effect until the judge modifies it due to a valid reason and after investigating whether there are reasons to revoke the child support order or not.

Financial Resources in Prison

The most common question here is how is it possible for an incarcerated parent to still have income or assets while in jail? Being locked up doesn’t necessarily mean that the supporter has lost all of his financial means.

They might still have the following:

  • Rental income
  • Valid bank accounts, retirement accounts or other valid accounts that are available to use for child support
  • Income resulting from selling valuable property (i.e., real estate, vehicle, and others)
  • Financial benefits due to disability, retirement and others
  • Income from investments (i.e., bonds and stocks)
  • Money from selling bonds and stocks

Another thing to keep in mind is that in cases where the supporting parent has the ability to pay but does not provide child support, you may file a contempt action in court. This means that the court will hold an incarcerated person in contempt for not paying child support orders.

In this case, the locked-up parent has to prove to the court that they cannot pay for child support. The judge will then decide after carefully examining the child support sources mentioned above.

Even if the court decides that the incarcerated parent was not in contempt, this does not end their child support obligations. To clarify, if the judge decides not to modify the child support order, the unpaid amount will add up and is usually referred to as arrears. The court will order the supporting parent to pay their arrears as soon as they are able to do so.

Other Important Information

Can a Mother Get Custody if the Father Is in Jail?

In most cases, the answer is yes, the mother can get full custody if the father is in jail. In this instance, the mother can file for sole legal and physical custody under specific circumstances. However, the father will still have visitation rights, and if he asks for them, he can request for supervised visitation. This means that the father will likely get a few hours of supervised visitation every week.

Once released from jail, the father might request visitation and the judge will likely order monitored visitation. The judge’s primary focus is the child’s wellbeing, and courts prefer not to cut off children entirely from their parents.

If you do get full custody, you might not be able to receive child support. This is because the father won’t have the means mentioned above to pay for child support. However, if there is a child support order, the arrears will continue to add up, and the father will eventually have to pay them once he is released from jail and starts working again.

Can a Father Get Custody if the Mother Is in Jail?

In the most general sense, when one parent is incarcerated, the other will get child custody. In other words, when a mother goes behind bars, the “first-in-line” to receive custody over the child is the father.

In most cases, it is difficult to provide a direct answer to these two questions. There are many factors that must be considered as child custody is already a complicated issue. Legal guidance is necessary to understand the whole process and its requirements.


  • Child his parent is in jail holding a paper image of family of threeChild custody requires professional legal assistance, especially when one of the parents is incarcerated.
  • When one parent gets locked up, they don’t automatically lose their visitation and parenting rights. The judge will most likely grant them supervised visitation for a few hours per week, depending on the circumstances of each case.
  • In case of shared custody, the non-incarcerated parent will have to ask for permission from the locked-up parent if their child must undergo any surgeries or other major life events.
  • Child support does not stop while the supporting parent is in prison. There are many ways through which the incarcerated parent can continue paying child support. In any case, they will be required to pay child support arrears once they are released.
  • If a single parent goes to jail, those who are most suitable to ask for guardianship are close family members and friends.

Sometimes a father and a mother will be facing a lengthy prison sentence. If that is the case, hiring a lawyer is necessary to finalize custody arrangements and appoint a suitable guardian for their child. The incarcerated parent may need to hand over full custody to the other parent to serve the best interests of their child.


  1. Texas Attorney General. (n.d.). Incarcerated Parents.
  2. Judicial Council of California. (n.d.). Beyond the Bench: Children, Families, and the Courts. [PDF].
  3. Population Reference Bureau. (n.d.). Parents’ Imprisonment Linked to Children’s Health and Behavioral Problems.
  4. New Jersey Department of Corrections. (n.d.). What About Me? A Workbook for Children of Incarcerated Parents. [PDF].
  5. Oklahoma Department of Human Services. (n.d.). Case Planning for Incarcerated Parents.
  6. (n.d.). Children of Incarcerated Parents.
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