Divorce, Incarceration & Child visitation rights: Implications for children and ex-spouses

Does an incarcerated parent have a right to custody and visitation with minor children?
The Supreme Court of the United States has spoken on this issue of parental rights to custody and control of their children. The rule is that both natural parents have a fundamental right to the care and custody of their children, and absent a showing of unfitness, the government is cautioned to let parents alone to raise their kids. No special rule was carved out for parents who are incarcerated.
A felon parent who is in jail still has a right to custody and care of his or her children (and are still liable for child support, btw). However, due to the incarceration, these rights may be curtailed in the “best interest of the child.” Remember that that is the ultimate test: Best Interest of the Child. The court will balance all other rights through this lens.
Parental rights are not automatically terminated just because a parent will be in prison for an extended period of time. So long as that parent continues to act like a parent, i.e., remains in contact with the child by sending letters, gifts, and phone calls, etc., it will be very difficult to convince a court to terminate a parent’s right to custody and control of the child – even if the felon parent will be incarcerated to a long time.
Of course, it is difficult for a parent who is incarcerated to exercise residential and physical custody of a child. However, legal custody is another matter and there are circumstances where a parent who is in prison can maintain legal custody and/or share legal custody with the other parent. And certainly, a parent who is in jail has a right to visitation with the child if that can be arranged without too much harm to the child. Again, if it’s not in the best interest of the child, a subjective test that is determined on a child by child basis, then the courts are unlikely to order the visitation.
More fathers than mothers are in prison as we speak and so many father’s rights groups are becoming more vocal and aggressive in representing fathers who are in fear of losing their parental rights while incarcerated. However, there are a rising number of women criminals who are also in the same situation where they fear losing all control over what happens to their children – some of whom wind up in the foster care system or are outright adopted. The general rule with that is that before the child can be adopted, the state has to terminate their parental rights and to do that, the state has to show by clear and convincing evidence that the parent has ceased acting like a parent to the child.
Former spouses of incarcerated individuals should take note. While it is likely that the parent who is not incarcerated will receive physical custody, it is not guaranteed that the other parent could not share legal custody. It depends on the situation. Granted, usually, the incarcerated spouse will NOT receive any form of custody – legal or physical (especially if the period of incarceration is lengthy) – but sometimes, they might depending on the circumstances. However, whatever the custodial arrangements, the non-felon spouse should be prepared that he or she will have to produce the children for some form of visitation with the jailed spouse and that the jailed spouse will have at least some say in what happens to the children from a legal standpoint.
If you are in jail and need assistance with visitation with your minor children, contact the American Civil Liberties Union and the National Legal Aid Defender Association.