Will I Lose My Parental Rights if I'm Incarcerated?

Have you recently been convicted of a misdemeanor or felony crime in California, or are you facing criminal charges? Whether you’re accused of a state or federal crime, upon conviction you could be incarcerated for months, if not years. If you are a parent of a child under the age of 18, you may be wondering, “Will my parental rights be terminated if I am found guilty and incarcerated?”

Whenever parents are sent to jail or prison, usually their first and most important concern will be the fate of their children. If you’re sentenced, your children may live with your husband or wife. If you’re unmarried, they may be sent to live with their other parent, a relative, or a close friend. Or, your children may end up in a group home or foster care.

The purpose of this post is to answer critical questions for incarcerated parents about child custody and parental rights, during and after they are in jail or prison. Since there is too much information for us to include in one post, we encourage you or a loved one to contact our office directly to learn more.

In the meantime, we hope to shed light on your situation and help you better understand how the system works in regards to incarcerated parents, their parental rights and where their children will live while they are behind bars.

What Happens to Children After an Arrest?

When a parent is arrested, different things can happen depending on a variety of factors, such as whether the child was with the parent at the time of the arrest and the location of the child’s other parent. For example, suppose you were arrested at your home while your child was with you. If the other parent was at your residence, the child would likely be left in his or her care.

If the other parent is not there to care for your child at the time of your arrest, the officer maylet you contact the child’s other parent, a responsible relative, or a responsible friend (someone your child knows well) to care for your child, even before you’re booked down at the station.

If your child is not with you at the time of arrest, you should be allowed to contact the caregiver and let them know that you cannot pick up your child and that someone else, such as a relative or close friend, will pick up your child. Or, you can tell the childcare provider who they can call to come pick up your child.

“What I don’t have anybody to care for my child?” If no one can pick up your child, Child Protective Services (CPS) will get involved. If your son or daughter is taken to CPS, contact a relative and have him or her contact CPS immediately.

If you have a family member who can care for your child, CPS will conduct an emergency assessment on him or her. The assessment process includes a criminal background check and a check of any pending criminal charges. CPS will verify the relative’s relationship to your child and it will visit your relative’s home to ensure it’s safe before allowing him or her to take custody of your child.

Note:If CPS is unable to place your child with their other parent, a guardian, or another responsible family member who does not pose any danger to your child within 48 hours of your arrest, CPS will file court papers to make your child a “dependent of the court.”

Our advice to parents who are arrested: Be very persistent. Don’t ignore your children. Ask your attorney, the police, the medical staff and community services for help.

Where Will My Child Live?

Here are some things you need to know:

  • If you are the custodial parent and you’re incarcerated, the non-custodial parent can ask the court for custody of your child.
  • If you were in the middle of a divorce, your soon-to-be-ex spouse can ask for custody as a part of the divorce case.
  • If you were not married to the other parent, the outcome depends on whether or not paternity was established before the arrest. If paternity was not established, the non-custodial parent will have to establish paternity before it can be awarded.
  • If the other parent files any of the above custody actions, you should receive the legal documents in jail or prison and you should have the chance to respond.
  • Even if the other parent establishes custody while you’re incarcerated, you have the right to seek visitation of your child while you’re behind bars.

About Foster Care

If your child is placed in foster care, it means the home your child is in has been approved by CPS. It also means that the juvenile dependency court has made an order about your child being placed in foster care. A foster care provider doesn’t have to be a stranger. It can also be a family member or an extended family member, such as your deceased uncle’s wife, or your trusted cousin. If a relative cares for a child who is a dependent of the court, they can seek financial assistance through CPS.

What if My Parental Rights Are Terminated?

Usually, when a parent is incarcerated, they are offered “reunification services,” which are specifically aimed toward helping incarcerated parents reunite with their children. Sometimes, however, incarcerated parents are NOT offered these services. Some of the reasons why you may not be offered reunification services:

  • Two psychiatric evaluations determined that you have a serious mental disability that makes you unable to care for your child.
  • On two or more occasions, a child has been removed from your care due to physical or sexual abuse.
  • You took a child’s life due to abuse or neglect.
  • You severely abused a child under the age of five.
  • Someone you know severely abused your child who was under the age of five.
  • You have severely abused a child and the court decides you should not reunite with your child.
  • You told the court that you do not wish to reunite with your son or daughter.
  • You were convicted of a violent felony defined in Section 667.5(c) of the California Penal Code.

Even if none of the above applies, the court can still refuse to give you reunification services, providing the court finds that a relationship with your child would be risky, dangerous or detrimental to your child. If this happens and your parental rights are ultimately terminated, your final option is to file an appeal in court.

Need a Los Angeles child custody lawyer? Contact Claery & Hammond, LLP at once for a free case evaluation with a caring attorney.