Does a person in jail have rights to Child Custody? 14 Answers as of July 11, 2013

If a husband is convicted by a jury in a federal trial (obstructing justice and making false statements to the FBI) does he have any child custody rights and would he still owe child support and alimony even if he's in jail for up to 20 years and he abandoned his family 4 months before his trial and has not contributed one penny to the kids and his wife since then?

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Beaulier Law Office
Beaulier Law Office | Maury Beaulier
It would be unlikely for a parent who is incarcerated to be awarded shared physical or legal custody. That does not mean they cannot establish custody rights should they be released from jail. As a general rule, no child support would be payable while they are incarcerated since they have minimal income.
Answer Applies to: Minnesota
Replied: 6/28/2011
Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
Visitation is based on the best interests of the child. Regardless of visitation, support obligations will continue.
Answer Applies to: Washington
Replied: 6/28/2011
Pontrello Law
Pontrello Law | William Pontrello
In Florida there is shared responsibility, depending what your in jail for, but both parties have rights to share the child/children.
Answer Applies to: Florida
Replied: 6/27/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
I can't imagine any Family Law judicial officer awarding child custody to a man who is imprisoned for 20 years on a Felony conviction. You would best retain an experienced Family Lawyer to represent you in your divorce.
Answer Applies to: California
Replied: 6/27/2011
Law Office of Patricia Van Haren
Law Office of Patricia Van Haren | Patricia Van Haren
You should seek sole legal and physical custody of the children while the former spouse is in jail. At that time you may seek to terminate visitations. A court is unlikely to order visitations while a spouse is in prison. It is also unlikely that the support requirements would continue if your spouse is in jail for 20 years. However, you may be able to collect any past due support, if your spouse has any assets from which to collect. You should contact an attorney for information related to your particular case.
Answer Applies to: California
Replied: 6/27/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    He has rights and obligations until family court changes the order.
    Answer Applies to: Wisconsin
    Replied: 7/11/2013
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Legally, yes. Practically, no he could not exercise any "physical custody". But, merely being incarcerated does not terminate his parental rights nor his parental obligations. It may be appropriate for him to be involved in major decisions affecting the child, if he cares; he won't be excused from child support or alimony obligations, but obviously he isn't going to have any income while a prisoner so whether anything gets paid will depend on whether he has any outside assets available.
    Answer Applies to: Colorado
    Replied: 6/27/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    No, not really. He has no way to exercise parental rights, and especially regarding custody and visitation. He will not have to pay child and spousal support, which are suspended by law while he is incarcerated. If he's going to serve 20 years,just file for sole legal and physical custody. You do not have to terminate his parental rights, but could move to do so. This is a sad situation and I am sorry to hear about it. We all, including the Courts, (and even sometimes CPS)want to see a child, who innately loves his or her parents, often despite very abusive situations, have a loving and healthy relationship with both parents. This reminds me of the movie, 'Blow', with Johnny Depp and Penelope Cruz. It is horrible to miss out on your child's life. Just for obstructing justice and making false statements to the FBI?
    Answer Applies to: California
    Replied: 6/27/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    The family orders remain in place until they are modified by bringing a motion to modify. If the nonpayment of support/alimony was willful then there is a contempt motion as well.
    Answer Applies to: Connecticut
    Replied: 6/27/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    First, let's assume that you are in the State of Washington. I do that because Washington is where I'm at. Further, alimony, child support, and child custody are governed by state law. Therefore, it varies somewhat from state to state. From your email, it sounds like your spouse has not yet been convicted. If he eventually is convicted and sent to jail for a long time, then, we can say a few things about your case. Child support and alimony. Both child support and alimony are set based, to a large degree, upon the incomes of the parties. If your spouse is in jail for an extended period of time, he will have no income. Hence, the court will probably order no alimony and little child support. Custody. If your spouse is in jail, then, you are going to be the primary residential parent of the children. You will likely to have the right to make all major decisions regarding the children. Also, likely, there will be little or no visitation ordered with your spouse. Now, this does not mean that your husband's rights are totally terminated. Once your spouse is out of jail, depending on exact circumstances, the court may give your spouse some visitation with the children. However, at this time, predicting exactly what that might be is pretty much impossible.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In Washington he would still have a duty to support andcould arguefor a parenting plan that was in the best interest of the children. The child support will be based on his income, so presumably his support obligation would be low. You can argue that it is not in the best interest of the children that hebe involved in decisions aboutthem or be forced to visit him in jail.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    The court will have to decide whether a person serving a jail sentence will be entitled to visitation with his children. OF course a person in custody will not be able to ever have primary physical custody of his children. However, if the children are old enough (normally when they reach the age of 10 or above) if they have a desire to visit their parent in custody the court will normally allow for such visitation. Even if the parent cannot pay child support because he is jail that does not mean that he will be denied all visitation with his children.
    Answer Applies to: California
    Replied: 6/27/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    The question would be: is it in the child's best interest to be in the custody of an incarcerated federal prisoner; and the answer would be no. I think it would be a kindness to take the children to visit him (from time to time), but you likely will not even be obligated to do that.
    Answer Applies to: Ohio
    Replied: 6/27/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    If you are married to the father and he therefore had rights, his criminal conviction in and of itself would not act to take away or terminate his custodial rights. As to the issue of alimony and child support, you would need to talk to an attorney about your specific situation. The father still has an obligation to support the child even if he's in jail, but collecting court ordered child support may be difficult if he has no income.
    Answer Applies to: Georgia
    Replied: 6/27/2011
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