Reeves Law Firm, P.C. | Roy L. Reeves
Yes, unless there is some legal impediment. Does the father have a protective order or other court orders (such as supervised visitation) that would stop him from seeking custody of the child even if mom were not in jail? If the answer is no, then the father can seek custody while Mom is in jail. In fact, the law presumes the father will take the child under these circumstances, so if mom's parents are holding the child, they have no legal right to stop the father from taking the child (unless they have a prior court order)
Answer Applies to: Texas
Vincent J. Bernabei LLC | Vincent J. Bernabei
Father is next in line to obtain custody if mother is unable to care for the child. Other relatives or persons who may make a claim to custody would have to show that Father has not acted in the child's best interests before they could be awarded custody.
Answer Applies to: Oregon
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
Yes, the appropriate motion would need to be filed as soon as you know she is going to jail and for how long. It may only be temporary custody until she gets out, depending on the circumstances. You should consult with an experienced attorney prior to taking any action in order to best determine how to proceed. Hope that helps!
Answer Applies to: Florida
Donaldson Stewart, PC | Monica H. Donaldson Stewart
This question is difficult to answer without additional information, but in the most general sense, the incarceration of one parent may be cause to award custody of a child to the other parent. I recommend you speak with an attorney to get specific advice about your situation.
Answer Applies to: Arizona
John E. Kirchner, Attorney at Law | John Kirchner
Very generally, "yes". However, "can" is not equal to "will" and the mere fact that mother is in jail does not mean that father automatically gets custody. The first question to be answered involves whether or not there is any existing court order defining the rights & responsibilities of either parent. If there is a court order, the terms of that order may need to be modified; if there is no court order, the next question is whether or not the parent are married. The bottom line is that "custody" of the child will be determined based considering the child's best interest and the constitutional rights of a parent to be involved in his child's life. But, that decision has to be made by court and you have not provided enough information to figure out what court should be involved or how. You need to consult an attorney who can discuss all of your options after becoming informed about all of the facts and circumstances.
Answer Applies to: Colorado
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
That would likely happen, but it would be best for the Father to file an Order to Show Cause for modification of Child Custody, so that he can have all appropriate legal rights to the child.
Answer Applies to: California
Gulstrom, Henson & Petrie, PC | Tami Monek
Yes, but how custody is achieved and how long you have custody depends on your circumstances. Unless a court order states otherwise, you are presumed to have "joint" legal and physical custody of your child. If no court order exists, you are legally entitled to exercise custody over your child. If a court order exists granting you only specified visitation and the mother is only incarcerated for a short while, the mother may "delegate" her custodial rights/authority to another person. If a court order exists and the mother will be incarcerated for more than a minimal amount of time, you may best be served to immediately modify custody. However, in the last circumstance, a Judge will be interested in the nature of the mother's charge, whether the child was present, and your own circumstances. Because the fact-intensive nature of these questions, you should contact a lawyer to discuss your options.
Answer Applies to: Idaho
Law Office of Michael W. Bugni | Jay W. Neff
I suppose whether the father can get custody of the child when the mother goes to jail will depend on (1) what the mother is going to jail for and (2) for how long she is going to jail. For example, if the mother is going to jail for one day for stealing a package of cigarettes, custody is probably not going to get changed. On the other hand, if she were going to jail for two years for felony possession of drugs, it probably would get changed. Also, certain crimes are more likely to alarm the court than other crimes. A crime that convinces the court that there is a significant physical risk to the child if the child remains in the mother's custody is likely to make a modification of the custody arrangements much easier than one that does not.
Answer Applies to: Washington
Fox Law Firm LLC | Tina Fox
You have a VERY good argument as to why you are better fit to care for the child over the mother. I'd need more information (i.e. - how long is she in for, and on what charges) to accurately answer your question and you can call the office for a free confidential consultation to discuss in detail if you'd like.
Answer Applies to: Illinois
Wallin & Klarich: A Law Corporation | Paul Wallin
If the mother goes to jail the person "first in line" to take custody of the child is the father. However, of course the father has to be deemed a "FIT PARENT". However, if you take custody of your child and nothing goes wrong (meaning the social workers don't get involved) then you should be able to have custody of your child without a problem.
Answer Applies to: California