If your ex-spouse ends up in jail, he can’t have normal visitation with your children, but he doesn’t necessarily lose visitation rights. Whether an incarcerated parent retains visitation rights with his children depends on state laws and the crime he committed. Also, his visitation rights probably won’t change at all unless you or another guardian of the child contests his visitation rights.
A parent or legal guardian who is not incarcerated can ask the court to modify the existing child custody and visitation order since state laws often allow modifications when the family’s circumstances change significantly. Typically, this begins when the non-incarcerated parent files a motion with the court that issued the most recent visitation order. The motion would request for the court to terminate or suspend visitation on the grounds that visitation with the incarcerated parent is not in the child's best interests.
Since the parent-child relationship is constitutionally protected, incarcerated parents generally have the right to respond to the non-incarcerated parent’s motion, and an incarcerated parent may have the right to a hearing before being denied visitation rights with his children. However, the prisoner may have to represent himself or hire an attorney. Most court systems provide limited access to low-cost legal services to address domestic issues. Additionally, many states only give a prisoner the right to court-appointed legal counsel if his parental rights are being terminated, but counsel is usually not provided if the prisoner may only lose visitation.
Best Interests Standard
When presented with a motion to modify visitation, the court must consider what visitation arrangement is in the best interests of the child. Typically, the court makes its decision on a case-by-case basis using factors contained in state laws. These factors may include the child's age, distance between child and incarcerated parent and any resulting hardship, child’s physical, intellectual, moral and spiritual well-being, and the incarcerated parent’s relationship with the child. Each individual jurisdiction may establish rules that suspend visitation during periods of incarceration and in some states, like Florida, parental rights may be terminated in certain cases of long-term incarceration.
In cases where incarceration was the result of domestic violence, including violence against the child or the child’s parent, the court might terminate visitation rights -- or even terminate all of the perpetrator's parental rights. In fact, depending on state law, a parent may get his rights terminated for domestic violence even if he is not incarcerated. Even if your state’s laws do not directly address this issue, courts might not consider it in the child’s best interests to maintain significant periods of visitation with a violent parent.
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.