Child Custody Legal Rights and Options When a Parent is in Prison in New Jersey
Incarceration poses challenges, but it doesn’t necessarily end a parent’s relationship with their child. By staying connected and committed, incarcerated parents may be able to maintain their rights and work towards reunification.
Many parents who are no longer married to their child’s other parent worry about custody and visitation issues. However, in some cases, a parent is incarcerated, which can change custody and visitation matters dramatically. Many parents may believe that incarceration immediately means a loss of custody and visitation rights, or even a loss of parental rights completely. This is not necessarily the case, though. While there are certainly circumstances in which an incarcerated parent is denied custody or visitation rights, and may even have their parental rights terminated, there are also many circumstances in which the incarcerated parent retains certain custody rights and also has visitation rights. Navigating these rights to ensure the parent’s rights are respected while also protecting the children can be challenging, but it can be done. Our family law attorneys at Montanari Law Group can assist parents in understanding their rights and obligations when one parent is incarcerated, options for continued connection with children during a period of imprisonment, and the paths toward reunification when the circumstances warrant such requests.
Custody Challenges when Incarceration Separates Parents & Children in NJ
If a couple is happily married when one of them is incarcerated, they often find a way to maintain the strength of all their relationships during the prison term. This may include in-person visits, phone calls, video calls, and other methods of communication. It is difficult, but for these families, it is worth it. Unfortunately, in some cases, a couple is no longer together when one of them is incarcerated. In these cases, the circumstances are much more challenging.
The first problem faced in these circumstances is that the incarcerated parent loses any physical custody rights they may have. This is because they cannot have physical custody of their child while in prison. This can allow the other parent to gain sole physical custody and potentially use the situation to gain sole legal custody as well. This is often what happens if the parents do not get along well.
However, until and unless a court explicitly takes other rights away, physical custody rights are the only rights the incarcerated parent automatically loses. If the incarcerated parent shares joint legal custody, or the right to make decisions regarding the children, with the other parent, they will often retain this right. This means the custodial parent must still work together with the incarcerated parent to make decisions about their children. The incarcerated parent will retain their parental rights as well, unless or until the custodial parent files a petition requesting they be terminated or the Division of Child Protection and Permanency (DCP&P) files such a petition.
If the parent being incarcerated is a single parent with no co-parent to take custody of the child, this can add an additional layer of complexity. Fortunately, there are solutions that may allow the parent to maintain their parental rights and regain custody once their incarceration is over.
Temporary Guardianship Options While NJ Parents Serve Prison Terms
If a single parent with no co-parent is facing incarceration, this can be particularly terrifying. Since they cannot take their child to prison with them, their child must be placed in someone else’s care. Ideally, this would be the child’s other parent. But what if the child’s other parent is deceased, unknown, or has abandoned the child? In these cases, placing the child with the other parent isn’t an option. Fortunately, the state of New Jersey allows family members or friends to act as temporary guardians while a parent is incarcerated.
In order for a friend or family member to become the child’s temporary guardian, they must first file a petition with the court to be appointed as a kinship legal guardian. Kinship legal guardian is a legal term that indicates the individual asking for guardianship is a relative or close friend of the parent. This will not terminate the parent’s rights and allows them to retain some custody rights, such as being involved in decision-making and visitation rights. The court will consider what is in the child’s best interests in deciding whether a kinship legal guardianship is appropriate.
When Foster Care Becomes Necessary During Parental Imprisonment in New Jersey
If a parent has been sentenced to time in prison, or even a few months in jail, they must go whether they have found a suitable guardian for their child or not. For parents with a limited support system, or no support system at all, it may be difficult to find someone they trust to care for their child. In situations where they cannot find anyone, DCP&P will step in and place the child in foster care while the parent is incarcerated.
The thought of foster care scares many parents, as it brings about concerns of the child being harmed, as well as losing parental rights and seeing the child being adopted by another family. Incarceration is not grounds for losing parental rights by itself, however. While DCP&P will move to terminate parental rights if they believe it to be in the child’s best interests, if the parent is only temporarily incarcerated, the parent can retain their rights by continuing to be as actively engaged in their child’s life as possible.
Prioritizing Parent-Child Bonds Through Prison Communications
Incarceration makes being an active parent more difficult, but not entirely impossible. The parent can maintain contact with their child in many ways. They can write letters and make phone and video calls to their child. Depending on the facility in which they are incarcerated, the parent may even be able to have in-person visits with their child. By taking advantage of as many of these options as possible, and ensuring they engage in them frequently, incarcerated parents can show that they care about their child, are not abandoning their child, and are eager to resume their role as a parent when their incarceration ends.
The Adoption and Safe Families Act of 1997 (ASFA) has a provision provoking mandatory termination of parental rights if the child has been in foster care for 15 of the previous 22 months. This provision is why incarcerated parents must maintain contact with their child as much as possible, particularly if they will be incarcerated for more than 15 months. Incarceration by itself is not enough to terminate parental rights, and the State may be required to provide services to an incarcerated parent to help ensure reunification of the parent and child upon the parent’s release. This is more likely to occur if the parent has maintained contact and made a sincere and committed effort to maintaining or even strengthening their relationship with their child.
Considerations for Custody and Parental Rights During Imprisonment in NJ
An incarcerated parent is a unique situation. Incarceration limits the parent’s ability to engage in everyday parenting activities, the child’s ability to see and interact with their parent, and the custody and visitation options available. However, in most cases, incarceration is not permanent and only lasts for a period of months or a few years. Because of this, the courts and parents must consider several factors when deciding how to handle custody, visitation, and parental rights.
Length of Incarceration
When a parent will only be incarcerated for a few months or a year or two, and shows an effort to remain connected to their child and to building a safe, healthy, crime-free future, the other parent and the court are less likely to try to take any rights away. If the parent will be incarcerated for a long time, such as 10 or 20 years, there is a greater likelihood that they may lose custody rights or even their parental rights.
The Child’s Age
While the length of incarceration may play a role, so does the child’s age. For example, if a parent is going to be incarcerated for 20 years, but the child is 16, it is less likely that the court would decide to terminate parental rights and try to have the child adopted. If a parent has multiple children, different decisions may be made based on each child’s age, though the court does generally try to keep children with their siblings as much as possible.
Nature of the Crime
Just as the nature of the crime affects whether it is a misdemeanor or felony and how long the individual is sentenced to incarceration, it also impacts custody decisions. A parent who is incarcerated for child abuse (physical or sexual), murder, or attempted murder is more likely to lose custody rights and possibly parental rights than a parent who is incarcerated for drug possession or embezzlement of a small amount of money.
The Child’s Best Interests Are the Primary Concern
In any custody decision, whether a parent is incarcerated or not, the child’s best interests are the primary concern of the New Jersey family court. When one or both parents face incarceration, the child’s best interests are prioritized even more. While no one wants to separate a child from their parent, if the child’s best interests are better served by no custody or visitation, that is what the court will do.
Some of the factors considered when deciding what is in a child’s best interest include the parents’ ability to communicate, cooperate, and agree in matters regarding the child, interactions and relationships the child has with each parent and any siblings, the child’s needs, stability of the home, continuity and quality of the child’s education, fitness of each parent as a parent, and the extent and quality of time each parent spent with the child both pre- and post-separation.
Obviously, some factors will automatically be more in favor of the unincarcerated parent. However, some factors, such as the child’s relationship with their parent and the extent and quality of the time the child spent with their parent prior to incarceration, can be in favor of continuing visitation during the parent’s incarceration.
The Importance of Proving Parental Dedication While Serving Time
Perhaps one of the most important factors, and the one that the incarcerated parent has the most control over, is demonstrating a commitment to their child and rehabilitation. The best way the parent can do this is to take advantage of any and all options offered for maintaining a relationship with their child. This includes phone calls, letters, in-person and video visitations. The parent should also consider attending any parenting classes the facility offers as another indication of their commitment to their child.
Commitment to rehabilitation can be shown by following rules, taking responsibility for their actions, and respecting staff. The parent can also engage in other positive behaviors such as being cooperative and avoiding disciplinary issues. Engaging in educational or vocational programs, anger management programs, or substance abuse treatment can also show the parent is committed to improving their parenting and life post-incarceration.
Options for Arranging Child Visits During Parental Incarceration
Incarceration is an obstacle to visitation with a child but not a barrier. Being incarcerated makes it more difficult to visit with the child, but a committed parent should take advantage of any visitation options offered to them.
Prison Regulations Impact Parent Visitation
In-person visitations are ideal, but incarcerated parents do not always have that option. Visitation rights are subject to prison regulations and security concerns. Depending on the facility, in-person visitation may not be an option at all, while other facilities may generally allow them but prevent them in times of security issues. Phone and video visitations are also subject to prison regulations and security concerns. An incarcerated parent who has disciplinary action taken against them may lose their phone or video call privileges temporarily. If this occurs often enough, it may impact the parent’s rights.
Planning Prison Visits and Managing Expectations
Each correctional facility in New Jersey has its own rules regarding visitation with inmates. To arrange visits, the custodial parent should contact the facility well in advance of their intended visit to learn about the procedures to schedule the visit. These procedures typically include filling out paperwork, providing identification, and in some cases, may also require supervision of the visit. The visit will need to be scheduled in advance; how far in advance will depend on the correctional facility’s rules.
There are potential challenges involved in visitation at the facility. First and foremost, the facility may have age restrictions that prevent smaller children from visiting incarcerated parents. Additional challenges may include visitations being canceled after the custodial parent and child have arrived, the child feeling emotionally overwhelmed or distressed due to the unfamiliar and intimidating environment of the prison, security procedures such as metal detectors and body searches, and long wait times. Limited physical contact with the incarcerated parent may be difficult for younger children to understand. The custodial parent may also struggle to explain why the other parent is incarcerated.
Video Conferencing Visits With Imprisoned Parents
Some correctional facilities offer video conferencing technology for virtual visits. In cases where a child may be too young for in-person visits or in-person visits simply aren’t an option for other reasons, virtual visits can be a viable alternative that allows the parent and child to still see each other, maintain their relationship, and engage with each other despite not being in the same physical space. While these visits are subject to the same rules as an in-person visit at the prison, they may be easier on a custodial parent as they can often be scheduled to fit the family’s schedule. Additionally, the family will go to a parole office for the virtual visit, which may be less intimidating and overwhelming for children. These visits must be scheduled at least seven days in advance.
Restoring Child Custody When a Parent is Released from Jail in New Jersey
When a parent has kept their parental rights and maintained contact with their children through visits, phone calls, and other methods during incarceration, this creates the possibility of reunification after the parent is released. While a parent may not be able to get sole custody of their child from the other parent after being released from prison, they may be able to get joint physical custody. For a parent without a co-parent, regaining custody of their child from the guardian may be an option. For these to be options, there needs to be a plan for reunification.
Developing an Effective Case Plan for Parent-Child Reunification
Incarcerated parents may be able to participate in programs specifically for incarcerated parents that will help them develop a case plan to reunify with their child. These programs may offer education and other support, including parents who have previously been incarcerated and have reunified with their children acting as mentors, to help the incarcerated parent prepare for reunification.
A case plan for reunification may also include detailed steps outlining things such as finding employment and housing, creating a support system of family and friends, and helping the parent create plans and backup plans for important situations such as ensuring the child attends school or having appropriate caregivers available when the parent works. The case plan will also include details regarding transitioning the child from their guardian back to their parent, including ensuring the guardian maintains contact with the child to ease the transition.
Without a case plan, it may be more difficult for the parent to reunify with their child. The court wants to see that the parent is not only committed to being involved in their child’s life, but also putting their child’s best interests first. Without a case plan, it can be more difficult for the court to see this and therefore, there may be some hesitation about returning the child to the parent.
Meeting Court Requirements for a Stable Home Environment
Even with a case plan, the court may have concerns about the parent’s ability to provide a stable home environment. Many individuals seek housing via reentry programs, which offer community resource centers, subsidized housing options, halfway houses, or other transitional housing options. These are often not ideal places for a child to live or even spend a night or two.
The parent can address these concerns by having a plan that gets them on their own in stable housing as quickly as possible. For example, they may see if a friend or relative has a room for rent that they can use. They may also take advantage of the reentry programs but have a plan for finding employment, saving money, and finding their own more suitable and stable housing as quickly as they can.
Steps to Update Your New Jersey Custody Order After Release
There are two ways to modify a custody order in New Jersey. The first is by submitting a consent order to the court if both parents agree to the changes. This is the easiest way to modify the custody order. The second way is by filing a motion to modify the custody order. This requires showing a substantial change in circumstances warranting the change.
The parent being released from prison can be considered a substantial change in circumstances, but they may still need to prove that they are prepared to take on the responsibility of custody, such as showing they have employment and a stable home environment. After the motion is filed, the court will screen it and if there are any substantial issues to work out, order the parents to attend mediation. Then, the judge will decide whether to accept or deny the motion.
Discuss Your Custody and Parental Rights When One Parent is Behind Bars in New Jersey – Call Montanari Law Group Today
Child custody laws and the child welfare system are complex and difficult to navigate. At Montanari Law Group, our experienced family lawyers have a thorough understanding of these laws and systems and can help incarcerated parents navigate them and, depending on the situation, either help to protect the incarcerated parent’s rights or help the child’s other parent or loved one to secure the legal rights they desire. Our skilled attorneys can advocate for a parent to be reunified with their child, including referring them to resources that can assist them with creating and implementing a case plan for reunification. We can also advocate for guardians seeking to provide the child with the most stable, loving environment possible when one parent is in prison.
We are committed to supporting families who are facing these challenges in Paramus, Caldwell, Wyckoff, Millburn, Totowa, Haledon, Montvale, and throughout Passaic County, Bergen County, Essex County, and surrounding areas in New Jersey. Our compassionate and knowledgeable attorneys stand ready to offer advice and guidance and ensure that your child’s best interests and your own rights are prioritized. Call (973) 233-4396 or contact us online today for a free, confidential consultation about your unique situation.
