What Happens with Custody when a Parent is in Jail?

Monday, February 26, 2018

 What Happens with Custody when a Parent is in Jail?

When a parent is convicted of a crime and sentenced to time in jail, one of his or her first thoughts may be how the jail sentence will affect his or her parenting plan. Obviously, a parenting plan that has the child regularly spending time in both parents’ homes cannot be maintained while one parent is in jail.

If the child’s parents share custody, the non-incarcerated parent will generally have the child full time while the other is in jail. When this is not possible due to a termination of that parent’s rights, both parents being in jail, or a court finding that living with the non-incarcerated parent would harm the child, the child may be placed with an approved relative or in foster care. This is handled by the Florida Department of Children and Families.

Generally, the Timesharing Schedule is Suspended

It is impossible for a parent to perform his or her parental duties while he or she is in jail. For a short-term jail sentence, the incarcerated parent may seek a modification to the existing parenting plan. This can mean that the other parent has sole custody of the child until their former partner is released. It is rare, but not unheard of, for the court to approve in-person visits between an incarcerated parent and his or her child.

The Court can Terminate Parental Rights if a Parent goes to Jail

Incarceration is one of the grounds the court may cite to terminate a parent’s rights in Florida. Although incarceration in itself is not a reason to terminate parental rights, it can be cited if one or more of the following is true:

  • The parent is convicted of a violent or sexual crime, such as murder or sexual assault;

  • The parent has established a pattern of behavior that makes it likely that he or she will be incarcerated on future occasions;

  • If the parent is sentenced to a jail term that will have him or her incarcerated for the bulk of his or her child’s minor years; and

  • If the court determines that maintaining a relationship with the incarcerated parent would be detrimental to the child’s well being.

Specific Circumstances Matter in Every Case

It is most important to remember that no custody case is exactly like any other. Lots of Florida parents go to jail and in each of these cases, the specific circumstances of their crimes, their relationships with their children, and any additional relevant factors determine exactly what happens to their parenting plans.

Always, the child’s best interest guides how a parenting plan is altered. The court may deem that visiting a parent in jail would be detrimental to a child. It could also find that the child’s mental and physical health would not be substantially impacted by a parent’s incarceration and if a relative is willing to bring the child to visit the parent in jail, permit the visits to continue.

Work with Draper Law Office to Develop and Maintain your Parenting Plan

Incarceration can be difficult for every member of a family. To learn more about how your upcoming jail time will impact your parenting plan, schedule a free, no-obligation consultation with a member of Draper Law Office. Our team is here to serve you and can meet you in one of our three office locations: Kissimmee, St. Cloud, and Orlando.


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