Custody battles when only living parent is a released convict

February 12, 2009 11:46 AM

Hypothetical child custody question about when the only living parent goes to jail. How hard is it for the convicted parent to regain custody of their child upon their release?

I'm writing a story in which the father of a 16 year old girl has been in jail for 10 years for a theft-related crime. The convict's father (the girl's grandfather) has taken care of the girl the past ten years while the father was in jail, and considers himself her legal guardian still, and doesn't want to give her up to his son now that he's free, or even allow visiting rights. How hard would it be for the father to regain custody of his child once he's out of jail, especially if the girl's grandfather decided to fight it? Does the child have any say in the eyes of the law?

Since this is a fiction piece, feel free to suggest conditions under which it might make the father's case stronger to get his girl back, ie if there is a difference between making someone a temporary guardian as opposed to a permanent one, special conditions for non-violent criminals, custody vs guardianship etc. I am not a lawyer so know nothing of these matters.

Thanks!

posted by np312 to law & government (11 comments total)

I'm not sure about the obstacles presented by the legal system regarding a formerly-incarcerated parent regaining custody, but the child will generally have a guardian ad litem appointed by the court to represent their interests (which often can be at sharp variance with that of their biological parents, substitute caretakers or child welfare caseworkers).

One large factor in how big an uphill battle it will be for the hypothetical father is going to depend on whether his parental rights have been terminated (that's known as a TPR - Termination of Parental Rights), which is usually a precursor to a child being adopted or emancipated. If neither of those two (adoption or emancipation) were the goals of the child (as determined by a child welfare agency in consultation with the custodial grandfather) when they entered care at age 6, the fight to regain custody will be a little easier.
posted by Doofus Magoo at 11:59 AM on February 12

My first thought is that the girl can get herself declared emancipated. Then she can do as she chooses.
posted by JayRwv at 12:00 PM on February 12

Hmmmm. Even though this is hypothetical and for a story . . . my concern for the plausibility of the story would be the fact that the child is 16. By the time the whole drama unfolds - fighting for custody and whatnot and custody is established the child will then be close to 18 years old and custody wouldn't be an issue.

I think a child of that age (16) would most likely have a say in the custody arrangements. She's old enough and like I said, almost out of the house anyway.

You will probably need to determine if the father ever gave up his parental rights or if G'pa was just merely taking care of her while the son was serving his time (I'd THINK that temporary guardianship would work in favor for the dad, as would being a non-violent criminal). Even though Dad is a convicted felon, he is still her father, especially if he never gave up parental rights. And G'pa is still just G'pa. Not sure about grandparent's rights, in this case. Of course there would be proceedings to ensure that placing the daughter with the father would be in the best interest of the child - parental classes, perhaps, meetings with court mental health evaluators, etc. But, that does take time.

I think it would be an entirely different story for a custody battle for a 6 year old, or even a 13 or 14 year old, who still has time left at home before turning 18.
posted by Sassyfras at 12:01 PM on February 12

As said above, the age of the child matters.

A friend of mine was released from jail after being convicted of some DUI-related deaths, and re-gained half-custody of his (now) 6-year old son.
posted by roomthreeseventeen at 12:12 PM on February 12

If the child's age were closer to 14, then-- would it be easier for the father to win custody? I'm looking for terminology and situations wherein he'd have a good shot at getting her away from the grandfather. And if she were too indecisive to emancipate herself.

These are great answers, please keep them coming!
posted by np312 at 12:21 PM on February 12

The term you are looking for is "kinship care": when a child whose parents have been deemed unable to care for him/her is placed with a family member rather than in foster care. The state must approve such care long-term and would likely be monitoring the child's situation. The child would have her/his own social worker, who would make periodic recommendations about whether to keep the child in care or move for termination of parental rights.

The governing law on the subject is the Adoption and Safe Families Act of 1997, which mandated the creation of a Kinship Care Advisory Panel. The report of that panel is available on the Department of Health and Human Services website. You may also want to review the Supreme Court case of Santosky v. Kramer, which holds that termination of parental rights without a full and fair hearing violates a parent's liberty interest.

Basically, it seems that the likelihood of a state terminating parental rights over a child in kinship care varies from state to state. Many states have reunification as the default permanency plan for children in kinship care, while some others do not. But regardless of whether the state recommends termination of parental rights, the standard is to produce "clear and convincing evidence" that reunification is not in the child's best interests.

Right off the bat, you could make it more plausible for the father to regain custody if you constructed a narrative in which the state and the child's social worker recommended reunification.
posted by decathecting at 1:47 PM on February 12 [1 favorite]

To be a viable parent in the court's eyes, I would say the father would have to have a steady job and a decent place for them to live. Supportive testimony and recommendation from the prison warden or a probation/parole officer of sorts would help as well.
It would also be easier, I think, of the father was convicted of UNARMED robbery rather than armed robbery. There isn't any difference in standard sentencing minimums or maximums, but it would make a difference in the trustworthiness and dangerousness of the father.
Has he been writing letters to the girl, calling her, trying to remain an active member of her life?
Has he taken any in-prison classes, gotten a GED or other skill license?

Seconding the guardian ad litem, who would of course speak to the girl and through this figure she would have a voice, or at least someone who has taken her words into consideration.

I'm not a lawyer, I am a pre law student.
posted by shadowfelldown at 1:57 PM on February 12

I think it really depends on the scenario - If Dad was sent to jail and not heard from for the entire 10 years and then began contact and demanding his child back, then I think the G'Pa might have more of a case. However, if Dad was in contact with daughter and tried his hardest to maintain a relationship with her, then I'd think that the courts would look favorably upon the father and there wouldn't be much of a case.

However, if G'Pa were to contest custody, there would be hearings, mental health evaluations (on all three parties), custody hearings, interviews with the child, etc. to determine what is best for the child as determined by the court.

As for the age - I think the younger the age then the more likely the court has a say as to what is best for the minor with less input from the minor. As the minor gets older, she would have more and more of a say - within reason. And as was my understanding and experience (working in a family law office), the court tends to favor the child's parent, as long as the parent isn't a danger to the minor and can provide a stable life for the daughter (i.e. job, place to live).
posted by Sassyfras at 2:18 PM on February 12

Good comment from decathecting there.
In the part of Australia where I am, and where I have a bit to do with kinship care arrangements, the primary consideration is always the best interests of the child, not the rights or interests of the parents. Especially with teenagers close to the age of 18, the wishes of the child herself/himself are taken strongly into consideration.
The process in your story would go like this:
1. Father sentenced to prison
2. Child protection make an application to the Children's Court for a kinship care arrangement
3. Caseworker maintains contact with both the child, the father, and the guardian for the duration of the sentence, to keep track of the welfare of the child
4. After release, contact and visitation arrangements would have to be sorted out as a process between the Children's Court, the child protection authority, the father, and the guardian. It would be presumed that contact should occur, unless there were some reason not to, related to the child's welfare.
5. Care orders for kinship care might specify that contact only occur supervised, or that someone not be given contact. These kinds of contact orders can be challenged in court.
6. Contact orders are reviewed regularly.
posted by Fiasco da Gama at 2:21 PM on February 12

How hard is it for the convicted parent to regain custody of their child upon their release?

In general, not that hard at all, with the exception of a history of child neglect or abuse. Some crimes are more ... impugning ... than others, such as drug offenses. "Theft-related crime" would raise some concerns but by itself would not impede a custody bid as long as the parent were abiding by probation and/or taking parenting classes.

The system really is set up to keep kids with their biological parents by default. There has to be a good reason to do otherwise.

Consider the story of Joseph Wallace, whose mentally ill mother regained custody despite misgivings of social workers, and then murdered him.

Today, state laws increasingly do provide for the children to have an advocate in court to prevent exactly this situation from recurring. But you can see that the bar for TPR is pretty high.
posted by dhartung at 2:54 PM on February 12

The crime that Dad served time for would be a factor, I think. You say "a theft-related crime" but that covers a lot of territory. I would think that any kind of theft that involved violence or the threat of violence (e.g. bank robbery, armed robbery, purse snatching) would weigh more heavily against Dad in getting his daughter back than a non-violent robbery (e.g. burglary, breaking and entering, pickpocketing).

If Dad is deemed to be violent and dangerous, that is the kind of the thing the state would cite as evidence that it would not be in the best interests of the child for him to resume custody.

Another issue is gainful employment. If he doesn't have a substantial and reliable source of income, it's easier for the state to prove that he shouldn't get custody. Likewise, he'd have to have a permanent residence of reasonable size and cleanliness. If Dad is homeless, he's not going to get custody back.
posted by Chocolate Pickle at 3:05 PM on February 12