Child Custody, New York Family Law Group

If a Parent Goes To Jail Do They Lose Custody?

Last updated on February 27, 2023

Being convicted of a crime in New York can have severe consequences not only for the defendant but also for their family. Aside from the emotional and financial toll of criminal proceedings, a person’s life, reputation, and even personal relationships can hang in the balance.

Criminal convictions can significantly impact not only your personal liberties but your rights as a parent as well. If you find yourself in this delicate situation, speaking with an experienced New York child custody attorney can be beneficial in ensuring that your parental rights are protected. Contact New York Family Law Group today at (718) 293-1542 to learn more about how we can help.

Parental Rights After a Criminal Conviction

Parents who are convicted of a crime in New York face the possibility of losing their parental rights. However, it is important to remember that certain conditions should be met before this happens. A parent cannot lose their parental rights simply because they were incarcerated. For parental rights to be terminated, the following conditions must be satisfied:

  • If a child has been in foster care for 15 of the last 22 months, the foster agency can be allowed under federal law to file a petition for the termination of parental rights based on child neglect.
  • Parents who have not visited with, communicated with, or attempted to communicate with their child for six months or more may be found guilty of abandonment which is grounds for termination of parental rights.
  • Parents who are incarcerated may have their parental rights forfeited if the other parent of their child files for sole custody. As an incarcerated parent, their defense may be hindered by the fact that their incarceration can be used as an argument to grant sole custody to their co-parent.
  • The state of New York can file a petition for the termination of parental rights in cases where the conviction was incurred due to serious charges such as murder or manslaughter.

A person’s parental rights cannot be forfeited just because of being incarcerated. Foster agencies in New York are allowed to delay filing a petition for termination when a parent is incarcerated or in a residential drug treatment program. Agencies are also required to inform parents of options for foster services as well as their rights and responsibilities.

If a parent is required to pay child support or spousal support and is then incarcerated, speaking with an experienced New York spousal support and child support attorney is crucial to ensure that there is no conflict regarding an existing spousal or child support order.

Protecting Your Parental Rights

Defending your parental rights after you have been convicted of a crime can be accomplished through understanding the law and your responsibilities. The following may help ensure that your rights are protected:

Communicate and Remain Amicable With Your Co-Parent

Being on bad terms with your co-parent can give them further reason to file a petition for sole custody. While it is understandable to have some disagreements, it is important to remember that you should always put your child’s best interests first and compromise especially when their well-being is at stake. Having a civil relationship with your co-parent can decrease the chances of a custody dispute happening and they may even be willing to help you retain your parental rights if they see that you prioritize the welfare of your child over any disagreement.

Entrust Your Child’s Well-Being to a Guardian

Having your child stay with a relative, your co-parent, or another trusted adult who can serve as a guardian such as a friend would not count as staying in foster care. Hence, the requirement of staying in foster care for 15 months to be eligible to file a petition for termination of parental rights would not be met. It is important to choose a guardian who will look after your child well and who you can also maintain a good relationship with. If the acting guardian refuses to give your child back, you may face a possible custody dispute. 

Arranging for a trusted adult to act as your child’s guardian can be advantageous as you would have an easier time maintaining communication with and visiting your child when possible.

Make a Consistent Effort To Communicate With Your Child

To avoid being accused of and found guilty of abandoning your child or of child neglect, you must make a consistent effort to contact and communicate with them either through visitation or through letters and phone calls. It is also wise to begin making efforts to contact your child and to keep documentation of each attempt and successful communication. If your attempts to contact your child are denied by their caretaker, caseworker, or foster agency, you should also include it in your documentation.

Work With a Skilled New York Family Law Attorney

A qualified attorney can help you understand your rights and responsibilities as an incarcerated parent especially when it comes to retaining your parental rights. As an incarcerated parent, you have the following rights regarding your child in foster care:

  • The right to visitation – even if you are incarcerated and your child is in foster care
  • The right to know of your child’s placement reason and to identify family members or trusted individuals who can act as your child’s support resources while you are incarcerated
  • The right to representation by an attorney in Family Court
  • The right to know your child’s caseworker and to be in contact with them
  • The right to receive assistance pursuing reunification with your child
  • The right to participate in planning for your child’s future
  • The right to provide input on and to receive a copy of the permanency plan

The help of an attorney is also crucial in modifying an order of protection in case your co-parent has one against you. Your defense attorney may be able to change it to a limited order of protection or have the modification subject to family court approval. In the latter case, you may be able to file for visitation rights in family court yourself or seek the help of an attorney in filing a petition on your behalf.

The matter of your parental rights shouldn’t be left up to chance. Getting the help of a competent attorney who can assist you in understanding your rights and who has your and your family’s well-being in mind is crucial in ensuring that you will be able to retain the right to be a parent. 

At New York Family Law Group, top-rated New York family law attorneys Martin Mohr and Ethan Steward have the experience and skills necessary to defend your parental rights and custody in court. Our attorneys have helped New York parents who have been incarcerated retain their custody to allow them to continue to look after their children. Using their extensive legal knowledge of the law and the justice system, our family law attorneys have what it takes to assist you in your case. Call us today at (718) 293-1542 or fill out our online form for a consultation with one of our attorneys.



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