Incarcerated Parent – The Impacts on Child Custody and Support

July 26, 2022

By Jill K. Sanders, Esq.

Each year, tens of thousands of New Yorkers spend time in jail or in prison. In 2018, that number was 91,000 – that’s about 376 per 100,000 people. Somewhere between 55% and 63% of those people are parents. But what happens to the children of incarcerated individuals?


Custodial & Parental Rights of the Incarcerated Parent

When a parent goes to jail, the other parent usually gets custody of the children. While the incarcerated parent can’t have physical custody, he or she may be able to keep shared parental responsibility.

If custody of the children has not yet been determined, or if a new petition is filed, a conviction and incarceration can have an impact. As with most everything, the court will consider the best interests of the children. The circumstances of incarceration and the nature of the conviction will factor into custody. For example, a court will consider if the parent is morally fit, if they able to provide, or if they have an alcohol or substance abuse problem.

In some cases, parental rights can even be terminated. To terminate parental rights there must be legal grounds, and in cases of incarceration this is usually under a theory of abandonment. This can also occur if the parent is incarcerated for violence against the children or another family member.


An Incarcerated Parent and the Duty to Support

Under New York State law, both parents must financially support their child until the child turns 21 years old. Parents who are incarcerated should submit a downward modification request to the court for the support they’re required to pay. If possible, the request should be filed prior to incarceration.

Otherwise, un-paid child support will create a situation for that parent to face arrears and penalties upon their release from incarceration. Upon release, it will make it more difficult for them to find employment if they face such arrears and penalties.


Consult With an Attorney

If you are a parent and are facing time in jail or prison, you should consult with an attorney. An attorney can advise you about your rights as a parent, what your legal obligations are, and how to protect your relationship with your children. If you have a child and the other parent is in jail or in prison, you may also wish to speak with an attorney about your rights and the rights of your children.




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