A father's incarceration potentially impacts his parental rights. The manner in which a jail or prison sentence effects his paternal rights is determined on a case by case basis. At a minimum, a father's right to parenting time or visitation is effected by incarceration. In the extreme, a father sentenced to prison or jail faces the potential for termination of his parental rights.
A key consideration associated with the parental rights of a father in jail or prison is the length of the sentence. By law jail sentences tend to be measured in months rather than years. Of course, a person can end up serving a year or two in jail, a lengthy sentence is the exception and not the rule. Prison sentences are longer and rarely less than a year.
A sentence of under a couple of years or so is not likely to result in a father facing the prospect of losing his parental rights. He likely will lose any shared legal custody, however. Legal custody is the ability to take part in making decisions for the child. A longer sentence to prison does expose a father to the risk of losing parental rights.
The history of a father's involvement with a child before incarceration plays a significant role in the impact jail or prison will have on his parental rights. A father who consistently supported and involved himself in the life of his child has a significantly reduced risk of losing paternal rights while incarcerated, even if he is facing an extended sentence.
With that noted, the father nonetheless may see any legal custody rights eliminated because he is not in a position to really participate in decision-making for the child.
Geography plays a role in paternal rights of a father in jail. If the incarceration is a distant location from the child, paternal rights are more likely effected by jail or prison. The impact of geography on paternal rights is based on practical considerations of a father not readily accessible to the child not only because of bars but because of distance as well.
A common misconception associated with paternal rights of a father in jail is that these interests automatically are impacted significantly anytime a dad is incarcerated. In fact, paternal rights are significant interests and are only altered when absolutely required.
The potentially negative impact jail or prison has on a father's paternal rights is significant. Therefore, a father heading to jail or prison seriously should consider engaging the services of a capable attorney. The local and state bar association can aid in finding attorneys with experience in dealing with such issues. Additionally, these groups can assist in identifying lawyers who may consider such representation on a pro bono (no fee) basis. Contact information for state and local bar associations is available through the American Bar Association at:
American Bar Association 321 North Clark Street Chicago, IL 60654-7598 312-988-5000 abanet.org
- "Fathers' Rights: The Best Interest of Your Child Includes You"; James J. Gross; 2006
- "A Father's Right to Custody"; Julia Luyster; 2009