Decisions regarding child custody involve a determination of what is in the best interest of the child involved. The primary concern of the court is the child’s health, safety, and welfare. Child custody cases are especially important if they involve a situation where the other parent is in jail or in prison.
When a parent is in jail or prison, a child’s life can quickly be thrown into disarray. Unfortunately, this is an issue that comes up when a parent gets in serious trouble with the law. The sad reality is that 55% of state prisoners and 63% of federal prisoners are parents of minor children. If two parents share custody in such cases, the other parent may move to gain full custody of the child.
Impact of a Conviction on Child Custody
A felony conviction can significantly impact a judge’s decision in determining child custody. When deciding what is in the best interest of a child, the court can and most definitely will consider a parent’s criminal record to determine if they are morally fit, are able to provide a stable home, or have a drug or alcohol problem.
In some cases, a court can even terminate parental rights if the parent is incarcerated for violence against the child or another family member. In cases that don’t involve family violence, although the court would not award the incarcerated parent with physical custody of their child, the incarcerated parent may be able to keep shared parental responsibility.
Important Steps to Take After Learning the Custodial Parent is Incarcerated
If you find out that a custodial parent is in jail or prison, you need to take several important steps to ensure the safety of the child. If you are the other custodial parent, you have the option of filing a motion to modify custody and asking the court to protect your child from the incarcerated parent. In most cases, you may be able to file for emergency custody of your child.
If you are not the other parent, you may also have certain options. Below are some important steps you should take:
- You should immediately contact the appropriate agency. In most states, the agency is called Child Protective Services or the Department of Family and Children’s Services. If the other parent is not available, CPS or DFCS will most likely take temporary custody. You should notify them that you are a relative or a friend and interested in seeking guardianship. Your request needs to be approved by CPS and DFCS.
- Next, you need to file a motion for temporary guardianship in the family court where the child is currently residing. The petition should be detailed as to the amount of time you are seeking the guardianship. If you fail to state a specific time period, courts will often grant guardianship for a pre-set period, which may result in unnecessary disruption in the child’s life.
- Be prepared to answer questions in the guardianship investigation process. If you and the child are already living together, the court may grant the guardianship after only a brief investigation. If the child does not currently reside with you, the investigation may involve a longer process.
- You need to present evidence that you can provide a loving, stable home for the child. Although not all guardianship proceeds require a hearing, you need to be prepared in the event that you need to go to court and present your case. If another individual is also seeking guardianship, you need to prove that you will be able to provide a better home for the child.
Call an Experienced Central Valley Child Custody Attorney
If you are involved in a divorce proceeding or child custody battle, it is in your best interest to consult with an experienced child custody attorney to help you learn your legal rights and options with respect to the division of your assets.