Child Custody Rights When in Jail

By Mike Broemmel

Updated July 21, 2017

Prison guard talking to inmates

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Decisions regarding child custody issues always involve a determination of what is in the best interests of the child, according to Cornell University Law School. The standard applies even when one of the parents in incarcerated. The factors that come into consider when determining the best interests of the child include an examination of the residential status of the parents as well as their overall physical and mental health.


Laws in all U.S. states recognize two types of custody: legal and physical, according to the American Bar Association Section of Family Law. Legal custody involves the right of a parent to make major life decisions for a minor child. These include making decisions pertaining to such matters as religion, education and health care. Physical custody represents the parent who provides a residence for a child.

Physical Custody

An incarcerated parent is precluded from maintaining physical custody of a child. Obviously, a parent in prison cannot directly provide a home for her child. Moreover, the law does not permit that parent to delegate her physical custodial interest to a third party when the other parent is available.

Legal Custody

Incarceration in and of itself will not automatically deny a parent legal custody of a child. Although maintaining sole legal custody is doubtful, keeping joint legal custody is a real possibility. Provided the incarcerated spouse is able to maintain reasonable communication with the outside world--which typically is the case for most inmates--he can continue to participate in making major life decisions for his child.


In most cases, an incarcerated parent--even one lacking any custodial rights whatsoever--possesses some sort of visitation rights. These rights develop around the best interests of the child. Therefore, provided that a prison or jail visit does not significantly impact the minor child in a negative manner, some sort of visitation plan is developed for a parent during his term of incarceration.

Right to Legal Assistance

An incarcerated parent possesses the right to access legal assistance to protect her rights and interests. This can be done through the engagement of private counsel or through accessing services of not-for-profit organizations like the legal aid society. Contact information for these types of resources is available through the American Bar Association:

American Bar Association 321 N. Clark St. Chicago, IL 60654-7598 312-988-5000