Child custody is one of the most complicated and emotional processes in civil law. Whether through divorce, separation, or between two parents that never married, California seeks to provide an opportunity for both parents to be a part of the process of raising the child. In these situations, California tries to divide the child’s time and financial responsibility between both parents as much as possible. However, circumstances can change in both the parents’ and child’s lives, causing changes to custody orders or impacting the initial onset of one.
For parents facing incarceration and their ex-partners, it is important to know what happens in a child custody case when one parent is in prison.
There are several considerations taken into account when establishing physical and or legal custody of a child. Legal custody is the amount of decision-making power each parent has when making decisions on day-to-day needs such as medical care. Physical custody is how much time a child will spend with each parent. Both legal and physical custody can range from none to full. Ideally, California courts would like each parent to have an equal share in both so that they each remain a part of the child’s life.
Factors that determine legal and physical custody include:
- Impacts on the child, such as age or health
- The relationship between the child and each parent
- How involved the child is with their school or community
- The ability of each parent to care for the child
- Any history of family violence
- Any history of substance abuse from either parent
These considerations and others play an important role in determining what is in the best interests of the child, which is the court’s ultimate goal.
Child Custody When One Parent Is in Jail
When it comes to the incarceration of a parent, there are further considerations to make. Incarceration does not mean an immediate loss of custody. In fact, it may not play a role at all in determining the custody of the child. While physical or financial care will be taken into account, they may retain their rights once their sentence is served. For instance, if a parent is sentenced for a nonviolent crime and only needs to serve a few months, they may retain custody of their child, particularly if it is a first offense. However, if they are arrested and convicted of a more serious crime with longer prison sentences, they will likely lose a portion of their custody.
If both parents are a part of the child’s life and one is arrested or convicted of a crime, the custody of the child will likely default to the parent who is not facing criminal charges. If there is only one parent and that parent is arrested, a trusted family member could be given custody of the child for a time period determined by the court. The ultimate determination of a parent who is incarcerated is whether their custodial rights are taken away by the court either through the legal process or when challenged by another parent through a civil suit.
Challenging Custodial Rights
When one parent is incarcerated, the other parent, or concerned family member, will need to formally file a challenge to a standing custody agreement to attempt to gain full custody. While the challenge may grant custody to the non-incarcerated parent, they may still need to abide by visitation established through a court-ordered agreement. If this visitation is granted, or custodial rights are not taken away, the parent who is not in jail will still have a responsibility to consult with the parent in jail on major decisions and will need to make arrangements for the child to visit their incarcerated parent.
If a parent is seeking full custodial rights while the other is incarcerated, they must petition for the legal termination of parenting rights. A parent may not decide custody for themselves or make assumptions that an arrest nullifies any standing custody agreements. It must go through the court system.
Q: Can I Get Full Custody if the Father Is in Jail in California?
A: The opportunity to receive full custody of your child is always on the table when the other parent is incarcerated. However, you should not assume it will happen and take full responsibility until a court has ordered a new custody agreement. You should work with a family law attorney who will help guide you through the process of challenging custody in court.
Q: Can Parental Rights Be Terminated When a Parent Is Incarcerated in California?
A: Yes, parental rights could be terminated depending on the circumstances of the crime and the amount of effort the other parent is willing to put into challenging the custody agreement. For violent crimes with sentences longer than six months, the likelihood of parental rights being terminated increases. It is best to consult an attorney about the circumstances of your case to determine how the incarceration of the other parent could play a role.
Q: How Do I Get Child Support if the Father Is in Jail in California?
A: Until a court has ordered modification for child support, the responsibility of the payments still falls to the parent who has been ordered to pay. If that parent is incarcerated, it is their responsibility to petition for a modification of support that must be granted by the court. If the parent does not file for a modification and you do not receive payments, work with your attorney to follow the steps for a court to step in.
Q: Does the State Pay Child Support if the Father Is in Jail in California?
A: The parent who is ordered to pay child support is still responsible for that support until a modification has been made. If no modification is made, the parent needs to make appropriate arrangements to ensure the payments still arrive as necessary. If a modification is granted, the court will assist in making sure appropriate actions are taken in order to provide for the needs of the child.
Experienced Child Custody Attorney
Child custody cases are full of legal twists and turns, particularly when they are impacted by the incarceration of one of the parents. If you are the parent of a child and the other has been incarcerated, or if the child’s only parent is incarcerated and you are a loved one, get the legal help you need to ensure not only that custody arrangements are made but that the best interests of the child are considered. At the Law Office of Stephanie J. Squires, our team can help you challenge or modify existing agreements to ensure you and your child have the legal support you need. Contact our offices today.