If you are divorced, and the other parent of your child has been incarcerated, you can file for emergency custody to be placed with you or a trusted guardian. Courts will allow emergency custody when a child’s safety and stability, and physical, emotional, and mental well-being are at risk. Since the incarcerated parent cannot provide direct care, the other parent or legal guardian can request an emergency custody order to ensure the child is in a safe environment.
In this article, we will go over the specifics of how parental incarceration affects custody, whether the incarcerated parent can challenge the order, and how a court will make its decision. It is best to always speak to a legal expert to learn the details of your case, as some factors may or may not apply in your case. Speaking to an expert attorney will help you better understand the process, and will guide you during this stressful process.
How Parental Incarceration Affects Custody
Parental incarceration can significantly impact custody arrangements. A parent going to jail does not immediately lose their parental rights and still has a say in major decisions regarding the child’s healthcare, education, and overall well-being, but their ability to care for their child is limited, leading to modifications in the custody agreement.
Such modifications can be either temporary custody received by the other parent or a guardian while the incarcerated parent is in jail, or permanent custody given to the other parent or guardian, depending on how long of a sentence the incarcerated parent is serving, or if they are simply deemed unfit to care for the child.
If the crime committed by the incarcerated parent involved child abuse, violence, or anything that would endanger the child’s well-being, visitation rights for the parent and child may be restricted or denied altogether. If this is not the case, supervised visits or phone calls are allowed between the incarcerated parent and their child.
If an incarcerated parent is released, they may be able to petition the court to regain custody of their child, as long as they are able to show stability, rehabilitation, or the ability to provide a safe home environment for their child.
Can the Incarcerated Parent Challenge Emergency Custody?
If the incarcerated parent feels their child is not safe or in a stable environment with their other parent or guardian, they can contest the emergency custody order in Texas. They may need to hire some legal representation to challenge the custody order. Their options are limited, but they can file a response through legal counsel, Request a court-appointed attorney to offer legal assistance and present an alternative custody agreement.
If the incarcerated parent challenges the emergency custody, the court may appoint a trusted relative or guardian instead of the other parent or grant limited decision-making authority while the parent is in jail. They can also require a post-release custody evaluation to determine if the incarcerated parent can regain custody once released.
How Courts Determine the Best Interest of the Child
When making the final custody decision, including emergency custody cases, a judge will always prioritize the child’s best interests over the rights of either parent. This will ensure the child’s safety physically, mentally, and emotionally. There are several factors that will be taken into consideration when a court is making this decision.
First and foremost, the safety of the child is taken into consideration. They will look into whether the child is left without proper care due to the incarcerated parent’s absence. They will look to see if the child is at risk of neglect or instability. They will also look to see if the incarcerated parent had been in dangerous and harmful activities that could affect the child.
Next, they’ll look at the duration and reason for the parent’s incarceration. If they are only in jail for a short period of time and the parent has a stable support system, a court may grant temporary custody without removing the rights of the incarcerated parent. If the parent will be in jail for a long period of time, the court may grant sole custody to the other parent or proposed legal guardian.
The type of crime will also be considered. If the parent was convicted of child abuse, drug-related crimes, or any sort of violence, the courts may be more likely to restrict their parental rights or terminate them altogether depending on the severity of the crimes.
The ability of the other parent or guardian to provide a safe environment and care to the child will be factored into the decision. Their financial stability, relationship with the child, and their ability to meet and care for the child’s physical and emotional needs will all be taken into consideration.
For parents serving short sentences, the court may look at the possibility of reunification after release. The parent must, however, show they are able to get stable housing and employment post-release, show rehabilitation efforts, and show that they are committed to re-establishing a responsible parental role.
After taking these all into consideration, the court may decide to grant full custody to the other parent or legal guardian, allow supervised visitation or communication, or terminate the parental rights of the incarcerated parent in extreme cases. The well-being of the child is always the court’s top priority.
Speaking to an expert family lawyer will help you understand better what to expect during one of these hearings and will help you better prepare for this trying situation. They will be able to answer any questions you may have and will explain each of the factors that the court will look into in greater detail.
Hiring a Lawyer for Emergency Custody Cases
If the other parent of your child is incarcerated, you can file for emergency custody to ensure your child’s safety and stability. While incarceration does not automatically terminate parental rights, courts will modify custody arrangements based on the child’s best interests. The incarcerated parent can challenge emergency custody, but their options are limited. Factors such as the length and nature of the sentence, past behavior, and the other parent’s ability to provide care influence the court’s decision. Consulting a family lawyer, such as Eric Willie, is highly recommended for guidance through this process.
