Understanding the Impact of Incarceration on Child Custody and Parental Rights
A parent’s incarceration can be challenging and confusing for the entire family. Both parents may have questions regarding their parental and custodial rights. A conviction and resulting incarceration necessarily influence custody arrangements, and more importantly, influence a child’s welfare.
Physical and Legal Custody
Child custody includes both physical and legal custody. Physical custody refers to the right to have the child in your physical care and supervision. In contrast, legal custody is the right to make decisions regarding significant aspects of the child’s life, like education and healthcare. An incarcerated parent will lose physical custody of their child once behind bars, meaning the free parent will typically receive sole physical custody until the end of the incarceration term. A Court may also award the non-incarcerated parent sole legal custody of the child, depending on the circumstances.
Visitation
A custody order may also specify a parent’s “visitation” – an individual’s limited parenting time. Typically, a noncustodial parent will be granted reasonable visitation; however, a judge may deny or restrict visitation rights if the parent is determined to be unfit or if visitation with the parent would not be in the child’s best interests. In cases involving an incarcerated parent, a Court will consider factors such as the child’s age, the relationship between the child’s parents, developmental issues, and the nature of the facilities in deciding whether visitation is appropriate.
Termination of Parental Rights
An incarcerated parent may be stripped of their parental rights altogether. Either parent may petition to terminate the parental rights of the other, and there are several reasons a judge may grant such a petition in cases involving an incarcerated parent.
- Abandonment and Neglect – Lack of involvement in the child’s life over a period of time may constitute a reason to terminate parental rights. For example, a long-standing lack of communication or inquiry between a parent and child can establish abandonment and neglect, even if a parent was behind bars during that time. Furthermore, if a parent has been incarcerated multiple times, a court may find that parent responsible for neglect.
- Financial Support – If an incarcerated parent refuses to pay child support, a court may consider this a factor in terminating their parental rights. First, however, it must be shown that the incarcerated parent is able to pay an amount greater than zero, either due to previously-acquired resources or wages earned while incarcerated.
- Committing a Violent Felony If an incarcerated parent was convicted of one of the following felonies, their parental rights might be at risk of termination: (1) If a parent either committed or attempted to commit murder or voluntary manslaughter of one of their children or a child living in their home; (2) If a parent was involved in aiding, abetting, conspiring, or soliciting to commit murder or voluntary manslaughter of one of their children or a child living in their home; and/or (3) If a parent committed a felony assault on one of their children or a child living in their home and that assault resulted in serious bodily injury.
If you have concerns regarding the custody of your child after a parent’s conviction, an experienced family law attorney can help. A legal professional can help you navigate the legal system to ensure the best outcome for your family.
If you or somebody you know is navigating Child Custody Issues while a parent is Incarcerated, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where Theresa’s legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
