Divorce, Prison and Child Visitation

More than 5 million American families have a family member in prison, and incarceration does not necessarily end visitation and visitation rights for the convict.

While the Supreme Court of the United States has ruled that both natural parents have a fundamental right to the care and custody of their children, the high court has made no such ruling dealing with the visitation rights of the incarcerated. “Absent a showing of unfitness,” the court says, the government must leave parents alone because parents have a “liberty interest” in their own children. No special rule exists for the incarcerated parents.

According to the American Bar Association Section of Family Law, an incarcerated parent may ask for visitation with his or her child, despite incarceration.  Courts are guided in deciding prison visitation by the same principle that guides them in child custody: the best interest of the child. There are obvious limitations on visitation with a prisoner; for example, exposing a small child to a prison environment may not be seen as in his or her “best interests.”

However, an incarcerated father, for example, is not automatically prohibited from maintaining legal custody. Typically he or shares legal custody jointly with the mother. “Depending on the circumstances of an incarcerated father’s situation, he may remain in a position to share in the decision-making for the child even while in jail or prison.”

Of course, an incarcerated parent cannot exercise the right to physical custody of a child, which, according to the Cornell University Law School, means ”…providing a home for a child.”

“By definition, an incarcerated father lacks the ability to exert a right to physical or residential custody of a minor child. Indeed, depending on the nature of the crime charged against the father, even if he maintained physical custody, the criminal charges themselves may have resulted in a change in the custodial order prior to conviction, sentencing and incarceration.”

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