Filing for custody while father is in prison… will he get rights?

Custody and Visitation Forum
1

I have an 11-year-old and a 13-year-old, and I’ve been raising them on my own since birth. Their father has been in prison for the last 9 years, and he’s not getting out for at least another 5 years. They don’t talk to him, and he’s locked up in another state. I don’t even know exactly where.

He’s only listed on one of their birth certificates.

If I file for custody, is there a chance he could get rights and force visits? That’s my biggest fear. The kids don’t want a relationship with him, but if they ever changed their minds, I wouldn’t stop them.

The last prison he was in was 5 hours away from us. He owed child support, but they reduced it to zero since he’s in prison.

I can’t afford a lawyer, so how do I even start this process?

2

Why even bother filing? He’s in prison, and by the time he’s out, they’ll be 18 or almost 18 anyway…

3

BenjaminYoung said:
Why even bother filing? He’s in prison, and by the time he’s out, they’ll be 18 or almost 18 anyway…

I’m just scared that if something happens to me, he’ll get custody, and I don’t trust that he would do what’s best for them.

4

@Marin
You should write a will and name a guardian for your kids. That way, a judge will have something to consider if anything happens to you.

If he passed away, would your kids qualify for any benefits?

5

@Erie
A will actually affects custody? I didn’t know that!

6

Oakley said:
@Erie
A will actually affects custody? I didn’t know that!

Yes, a judge will take a will into account, especially since their father is in prison. The kids’ ages and what they want will matter too.

7

I know someone who went through this in NJ. The father was in for life, and she tried to terminate his parental rights. He fought back for visitation and won. If your ex gets out in 5 years, your kids will be old enough to speak up in court. Might be better to leave things alone.

8

@Jenna
This is what I needed to hear. Thank you!

9

He won’t automatically get rights. He would have to file for visitation. But if you start a case, that might give him an opportunity to do so.

Is there a reason you need a court order?

10

Holly said:
He won’t automatically get rights. He would have to file for visitation. But if you start a case, that might give him an opportunity to do so.

Is there a reason you need a court order?

That’s exactly why I haven’t done anything. He doesn’t care about the kids, but I’m worried he’d fight just to be difficult. I even lied to him and said he’s not on their birth certificates so he thinks he has no rights. He has no way of knowing the truth.

I’m only thinking about filing because if something happens to me, I don’t want them automatically going to him.

11

@Marin
He’s locked up for 5 more years. By then, one kid will be an adult, and the other will be 16. Not much will come of filing anything now. Courts won’t make you take them to visit since it’s so far away.

12

@Marin
You should talk to someone who handles wills and guardianship. That way, you can set up a plan in case something happens to you.

13

Holly said:
@Marin
You should talk to someone who handles wills and guardianship. That way, you can set up a plan in case something happens to you.

You can’t just ‘will’ kids to someone, but a judge will consider it. If you pass away, their father automatically gets custody by law unless a court says otherwise. Even if he can’t take them right away, he could give someone else custody.

I saw a case like this: Mom had full custody because Dad was in prison for 25 years. She passed away, but she had legal guardianship set up with a relative. They took care of the kids for over a year until the father’s parents went to court and won custody. The guardians had no warning—it just happened.

If you want to stop something like that, you need to get sole custody and legally name someone as a backup guardian while their father is still in prison. You’d have to prove he’s completely unfit, which isn’t impossible since he’s incarcerated.

14

@Whitney
You’re right that guardianship can’t be done through a will alone, but an attorney can help set up the right paperwork.

If their father is in prison, he won’t automatically get them. If his paternity isn’t legally established for one of the kids, that’s another factor.

The important thing is to have a plan and someone lined up to take action if something happens to you.

15

@Whitney
Actually, you can name a guardian in a will. A judge will take that into consideration.

16

I was wondering the same thing. Can prisoners even go to court hearings?

17

Fin said:
I was wondering the same thing. Can prisoners even go to court hearings?

Yes, they can. They either appear on a video call, by phone, or they’re transported to a local jail and then to court.

18

Fin said:
I was wondering the same thing. Can prisoners even go to court hearings?

I wasn’t sure if they could just call in or if the court would make them show up somehow. It felt too easy to assume he just wouldn’t be able to.

19

@Marin
I work with inmates, and there are ways for them to attend hearings. Some do video calls, some send lawyers. It depends on the case and the location.

If you can’t afford a lawyer, look for free legal help. There are pro bono programs, legal aid groups, and sometimes even law schools that offer assistance. Even reaching out to lawyers directly might help—some will take cases like this for free.