Can I file for full custody if the father is in jail? 22 Answers as of June 26, 2013

Can I file for full custody of my 8yr old son if his father is in and out of jail? And has current drug charges for selling and using a control substance? He has not seen or called our son in 4 years. And has never paid child support. Also will a judge grant him visitation?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
You will need to file a divorce or paternity action. The Court will enter a plan in the child's best interests.
Answer Applies to: Washington
Replied: 8/24/2011
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
You never know what a judge will do. But from the facts you've provided, especially that dad hasn't made any attempt to contact your child in four years, it is very likely that you would be awarded full legal and physical custody of your son. To avoid that order, Dad would have to respond and show up both at mediation and at the hearing (at least telephonically). If visitation is requested by the father, you can request the visitation be supervised based on dad's history and (if applicable) present use of illegal substances. I strongly advise you to speak to an attorney and pursue custody. Each courthouse in California has a family law facilitator (free attorney services) to help you complete the necessary paperwork.
Answer Applies to: California
Replied: 8/22/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
You can file for sole custody. As long as the Father is in jail there will be no visitation.
Answer Applies to: Alabama
Replied: 8/19/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
Yes you can file for full custody and probably should. If the father requests visitation, he might likely get a few hours supervised per week.
Answer Applies to: California
Replied: 8/19/2011
Beaulier Law Office
Beaulier Law Office | Maury Beaulier
Custody and visitation determinations by a court are made based on what a court believes to be in the best interests of the child. If the father has not seen the child in four years, it is unlikely he would be granted custody and any parenting time would likely have to be supervised to start, depending on the age and maturity of the child.
Answer Applies to: Minnesota
Replied: 8/18/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    There is a good chance you can get sole physical and legal custody. The father still has visitation rights but if he has not exercised them and he wants them, you can ask for gradual visitation that be supervised.
    Answer Applies to: Michigan
    Replied: 8/18/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Yes.
    Answer Applies to: Connecticut
    Replied: 6/9/2013
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    Yes, you may seek sole legal and physical custody while the father is in jail. A judge will likely order monitored visitation when the father has been released from jail if he requests it. It will be very difficult for you to get child support since he is unlikely to be working while in jail, however if there is a child support order, the arrears will continue to accrue and if he does get a job, you would be able to garnish his wages.
    Answer Applies to: California
    Replied: 8/18/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    YES you can file under these circumstances for sole legal custody and physical custody. Whether the judge will grant him visitation will depend upon many factors. It is most likely that if he has not seen the child for a long period of time the court would only provide him with monitored visitation.
    Answer Applies to: California
    Replied: 8/18/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    Yes you can file. Visitation is not possible in jail unless they get some kind of release.
    Answer Applies to: Utah
    Replied: 8/18/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    What a judge will do is not totally predictable, at least not without more information than you have provided, but you can apply for custody and what you state seems to make it likely you would succeed.
    Answer Applies to: New Jersey
    Replied: 8/17/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You are the classic candidate why one parent should have sole legal and physical custody. Petition the court for this relief in a motion and also ask that any visitation be supervised.
    Answer Applies to: California
    Replied: 8/17/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Since you don't say whether you are married to the father, it isn't exactly clear how to answer your question. If you have never been married and there is no current court order declaring the father as the legal father with certain specific parenting rights, then you really don't need to "file for full custody" because the father has no conflicting rights. Colorado no longer uses the term custody or visitation; but, "full custody" under older law would not necessarily prevent visitation (now called parenting time). The law begins with the assumption that appropriate access to and parenting time with the child by both parents is in the child's best interest. The fact that the father is incarcerated and has had no recent prior relationship would suggest that parenting time would not be appropriate or best for the child right now. But, until he pursues some legal action to acquire specific parenting time rights it isn't necessary for you to do anything.
    Answer Applies to: Colorado
    Replied: 8/17/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    Yes you can seek majority timesharing. Eventually the father may get supervised visitation. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
    Answer Applies to: Florida
    Replied: 8/17/2011
    Law Office of Rhonda Ellifritz | Rhonda Ellifritz
    Based on these facts only, I would recommend that you file for full custody. I am assuming you have no issues yourself. I would request monitored visitation, if any, until he proves to a court that he has a long period of sobriety under his belt and complies with this parole/probation.
    Answer Applies to: California
    Replied: 8/17/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    Custody and visitation are two different things. Custody refers to decision making authority. I would imagine that you would be entitled to sole legal and physical custody of your son. As for visitation, I have never seen a judge order visitation for someone who is incarcerated.
    Answer Applies to: California
    Replied: 8/17/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    If the father is in jail, you can file for full custody.
    Answer Applies to: California
    Replied: 6/26/2013
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend you hire a divorce attorney ASAP about your rights and options, and discuss whether sole custody might be possible in your case. Good luck.
    Answer Applies to: Georgia
    Replied: 8/17/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Unless he has ever legitimated the child or was married to you,. he has no custody or visitation rights in Georgia and you already have sole custody. There is nothing to file for.
    Answer Applies to: Georgia
    Replied: 8/17/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    Yes. Visitation? up to the Judge, but this man sounds like someone who should NOT have his child, only see the boy in a supervised safe situation. I can help you with this. And I will tell you up front what it will cost to do this for you.
    Answer Applies to: New Jersey
    Replied: 8/17/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    In the circumstances, and without knowing more about your case, it would certainly seem possible that you could file a petition to modify the parenting plan to restrict the father's access to the child. However, courts are a little reluctant to totally cut off a child from a parent. Therefore, if the parenting plan is modifying the court could include in it a provision that allows the father to ask for visitation in the future if he does things like: successfully deals with his criminal cases, has no new offenses, goes through drug treatment, has a series of clean random UAs, and such other conditions as the court may think is appropriate.
    Answer Applies to: Washington
    Replied: 8/17/2011
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