Will Parental Rights Be Terminated if One Parent Goes to Jail? - Bineham & Gillen

custodyWill Parental Rights Be Terminated if One Parent Goes to Jail?

May 7, 2022by James Gillen

If one parent is imprisoned or sentenced to jail, will they lose their parental rights? Unfortunately, there is no straightforward answer, as many states have different laws and it will vary case by case. However, there is some guidance on how to navigate these matters and what kinds of situations may lead to termination of parental rights.

Reasons Parental Rights May Be Terminated

As previously stated, many of these situations will vary case by case and depend on what state you live in. In some situations, if the conviction of said parent is related to custody, the state may petition to end parental rights if abuse has occurred or if the child has been deemed as abandoned by the parent.

For example, under the federal Adoption and Safe Families Act, the state has the right to petition for termination of parental rights if the child has been in foster care for 15 of the last 22 months. In some states, it depends on how long the child has been in foster care and how long the parent’s sentence is. Though the imprisoned parent can appeal for the restoration of parental rights, these pleas may not always be granted.

If states’ termination petitions are successful, the child can become eligible for adoption to another family. Though family members are given preference for adopting the child, an outside or unknown family can also adopt the child. In such instances, the parent still may be able to contact and have parental rights if it is an open adoption.

In some cases, when the parent who has primary custody is imprisoned, they can still maintain contact and visitation with their child. However, even though this person still has parental rights, the other parent can file for sole custody. If granted, they may also file to have the imprisoned parent’s rights and responsibilities. In some states, such as Arkansas, solid evidence must be given that demonstrates the imprisoned parent is a danger to the child, or that the child has been abandoned.

Other Things to Know About Parental Rights

One thing to consider is that the court typically does not order parents with physical custody to maintain contact with the incarcerated parent and the child. Such agreements are typically left between the parents to decide, unless a court order says otherwise. In general, it is best to maintain contact and visitation for the well-being of the child.

To be clear, custody is not the same as parental rights and responsibilities. One may lose physical custody of their child, but they are still entitled rights as a parent. These are not taken away unless court ordered.

Call a Family Law Attorney for Assistance

As mentioned, the path to losing parental rights if one is imprisoned is not always clear, and varies state by state. If you or someone you know is facing these issues, contact Bineham & Gillen today for legal services regarding child custody and parental rights.