Will I Lose My Children If I Am Incarcerated?

 Posted on January 16, 2018 in Child Custody

Committing a crime is never a good choice, and in many cases, the penalties for doing so are severe. In addition to the jail time and the fines assessed for some offenses, if you are a parent, it may be a long time before you are able to see your children again. However, it is not an absolute that you will lose all rights to see them. Knowing your rights is critical.

Unfitness as a Parent

Parental rights are terminated if a parent is deemed to be unfit. Unfitness is a concept used by the state to determine whether or not a child’s best interests are served by remaining in the parent’s custody. There is no single definition of "unfit" in Illinois; rather, it is shown that a parent is unfit if or when they display certain characteristics or behavior patterns (or, conversely, fail to do so). For example, a parent may be declared unfit if they are incarcerated, but only if they have previously shown a pattern of disinterest or neglect regarding the child, or if they have been repeatedly incarcerated to the point where they are unable to perform parental duties.

A parent may be found to be unfit for many other reasons, but they need not be related to the incarceration. One of the more common reasons a court may use for a determination of parental unfitness is what is referred to as "depravity," which encompasses a handful of crimes and destructive behaviors like severe neglect or sexual assault of a child. Such behavior is obviously not in the child’s best interest and will likely result in the parent’s rights being involuntarily terminated.

While You Are Incarcerated

If you are permitted to retain your parental rights, it is important for you to keep in mind that there are specific rules that must be followed during your sentence. Perhaps most importantly, you may need to settle the issue of child custody, also referred to as allocation of parental responsibilities. If two people are married to each other when their child is born, the mother’s husband is automatically granted paternity as he is presumed to be that child’s legal father. (The presumption of parentage applies in same-sex marriages, as well.) If the biological parents are unmarried, you or your spouse must establish paternity, if you have not already done so. This can be done either by completing a Voluntary Acknowledgment of Paternity upon your child’s birth or by obtaining a court order.

If possible, you should ensure that you have visitation rights, if for no other reason than to keep the relationship between you and your child strong. A recent study from the Minnesota Department of Corrections shows a notable drop in recidivism—between 13 and 25 percent less likely, depending on other factors—if family members and clergy visit prisoners at regular intervals, especially closer to the prisoner’s release date. It can make a big difference if you are aware that your child or children are waiting for you on the outside.

Have a Compassionate Attorney on Your Side

Being convicted of a crime does not mean that a person is a lost cause, but you will likely have some work to do in moving forward. You need an attorney on your side who will do their best to show that you want only the best for your children. Our DuPage County child custody attorneys are well versed in this area of law, and will work hard to ensure that you receive the most appropriate outcome. Call us today to set up an initial appointment.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3638&ChapterID=59

https://mn.gov/doc/assets/11-11MNPrisonVisitationStudy_tcm1089-272781.pdf