Prison Fence in Black and White. Barbed Wire Fence Closeup.

Do I Automatically Get Custody of My Child if the Other Parent is Incarcerated?

In all too many cases in the state of California and nationwide, a parent with physical custody of a child commits a crime and becomes incarcerated. When this situation occurs, it is important to change any existing custody orders with the court through the modification process. Incarceration is likely to be a circumstance in which you can file for emergency custody of your child. While you do not automatically get custody of your child if his or her other parent is incarcerated, chances are that you will be able to get custody of the child, unless there are unusual and extenuating circumstances. A parent generally has priority over other relatives or individuals, absent some valid reason that the parent is unfit to raise the child.

For example, if a parent has a documented addiction to drugs or alcohol that is not being treated, then the parent may not be the best custodian for the child. Likewise, if a parent is mentally ill, homeless, or has a past conviction for child molesting, that parent will have a difficult time getting custody of a child. These are some instances in which a court might hesitate to give a natural parent custody of a child when the child’s other parent is incarcerated. Otherwise, it is likely that the natural parent will be able to obtain custody of the child.

If you have never been to court about your child, it is still a good idea to get a court order stating that you have custody of your child now that his or her other parent is incarcerated. If your child was born during a marriage, then it probably is necessary to file for divorce or for a legal separation in order to get a custody order for your child. On the other hand, if your child was born out of wedlock, then you first much ensure that you have established paternity before you can seek a custody order. You may have signed a paternity affidavit that legally established paternity for you and placed your name on the child’s birth certificate shortly after your child’s birth. If you didn’t sign this affidavit, then you must file a parentage action in your local court in order to establish paternity. You then can seek a custody order in the parentage proceeding.

No matter what your divorce may entail, we will set forth your options and help you make the decision that best meets your objectives and needs. The Law Offices of Vincent W. Davis & Associates have handled countless divorces and family law cases throughout the years. Do not hesitate to contact an experienced California divorce attorney at our office if you have any questions about divorce or any other family law-related matters in the state of California.