When I Get Out of Prison, Can I Pursue Custody and Visitation?

 Posted on February 20, 2025 in Child Custody

Perhaps you were incarcerated when your spouse divorced you and was given total custody of your child. If you are now out of prison, can you ask the court for joint custody or, at the very least, visitation rights? The answer to that question depends on a number of issues, including the factors the court considers when making decisions related to parental custody and visitation.

It also depends on whether you were given custody and visitation before you went to prison or if those decisions were made while you were in prison. If you are out of prison and want to seek some level of custody or visitation, it is important that you discuss your situation with a Fort Worth, TX child custody attorney.

What Are the Factors Considered When Determining Child Custody and Visitation?

When a judge is deciding on child custody and visitation issues, the overarching theme is always the child’s best interests. Beyond this, the court will specifically consider the following:

• The age of the child
• The health status and age of each parent
• Whether the child has special needs
• Each parent’s home environment
• Whether either parent has a criminal record or allegations of abuse
• The emotional and physical needs of the child
• The ability of each parent to provide a safe, loving home for the child
• The relationship the child has with each parent
• Whether either parent has substance abuse issues
• How much time each parent could spend with the child
• The child’s educational and medical needs
• The level of involvement of each parent in the child’s life.

The court generally believes that a child benefits from regular contact with both parents, barring any unusual circumstances. Regarding incarceration, the court generally takes into account the nature of the offense, the length of the sentence, and how the imprisonment could potentially affect the child.

Can Parental Rights Be Terminated?

If a parent has been convicted on certain charges, the other parent may have grounds to terminate the incarcerated parent’s rights. These convictions include those for sexual performance by a child, sexual assault or aggravated sexual assault, manslaughter, indecency with a child, murder, assault or aggravated assault, abandoning or endangering a child, human trafficking, possession or promotion of child pornography, prohibited sexual conduct, sexual performance by a child,  elderly person, or disabled person, and injury to a child, elderly person, or disabled person.

Could Lesser Charges Result in Visitation for the Incarcerated Parent?

If the parent is incarcerated for a lesser crime, a petition for joint custody or visitation can be made once he or she is out. The court will consider, among other things, the incarcerated parent's past relationship with the child and that parent’s ability post-incarceration to provide a stable, suitable environment. The court may even prescribe an "improvement period" during which the parent must significantly demonstrate his or her efforts to improve the situation for the child’s benefit.

Does the Custodial Parent Have to Take the Child to the Prison to Visit the Parent?

If a parent received visitation rights prior to being sent to jail and there is nothing in the custody agreement that says otherwise, the custodial parent is not obligated to take the child to the prison for visitation.  If a parent is incarcerated when custody decisions are being made, that parent is clearly not able to provide a stable home life or meet the emotional and physical needs of the child.

Parents in prison during custody decisions are not entitled to have a court-appointed family lawyer represent them. Termination of parental rights cannot occur solely because a parent is incarcerated; terminations are usually instigated by the other parent, so having an attorney in this situation can be critical.  

Contact a Fort Worth, TX Child Custody Lawyer

If you have spent some time in jail or prison and now want to pursue custody or visitation, you need to speak to an experienced Fort Worth, TX child custody attorney from The Law Office of J. Kevin Clark P.C.. Attorney Clark has first-hand experience in the many stressors related to divorce and a special focus on divorce from narcissistic spouses. To schedule your free consultation, call 817-348-6723.