How Do I Get Custody of My Son if My Ex-Husband Is Going to Jail?

By Robin Elizabeth Margolis

You have a good chance of getting custody of your son if your ex-husband is going to jail. Although courts are ordinarily reluctant to deprive or reduce any parent's custody and visitation rights, a court will usually transfer custody of a child to a child's mother or other biological relative if the child's father is going to jail.

History

In earlier eras of British and American history, children of imprisoned fathers were sometimes allowed to live with them and their fathers retained custody. Charles Dickens' 1857 novel, "Little Dorrit," describes an imprisoned widower, William Dorrit, who has custody of his three young children. The children grow up in the London debtors' prison where Dorrit is incarcerated. Prison system changes in England and America in the second half of the 19th century resulted in children no longer being allowed to live with incarcerated fathers.

Return to Court

Your current custody arrangements were created by a custody decree, residential schedule or parenting plan issued by a court. To get custody of your son, you need to return to the court that issued the original custody order and have the order modified, transferring your son into your sole custody.

Divorce is never easy, but we can help. Learn More

Modify Custody Order

Each state has its own forms, filing fees and other requirements for filing a request to change your child's custody order, usually called a "motion to modify custody." Some states, such as Alaska, have online self-help centers from which you can download the necessary forms. You can also call the clerk's office of the court that issued your original custody decree and find out what forms and fees that court requires. The Family Law Organization maintains links to the child custody laws in every state.

Hearing Standards

Once you have filed the correct forms and paid the required filing fees, you will be asked to appear at a court hearing to explain why you want the custody order changed. Courts use two standards to determine if a custody order will be changed. The first standard asks if the requested custody change is in the "best interests" of the child. The second standard seeks proof that there is a "substantial change of circumstances" in the custodial parent's life. If you bring adequate proof to the court that your ex-husband is going to jail, a court will likely consider that both standards have been met. The court will then issue an order for modification of custody and visitation, spelling out the new custody arrangements.

Potential Problems

If you have previously had little contact with your son for any reason, your husband could ask the court to give custody of your son to another relative. Finally, even if you obtain sole custody of your son, your ex-husband may still seek visitation rights, including asking that your son be brought to see his father while he's jailed, and allowed to see his father regularly once his father is released from jail. If you have never had a formal legal custody order for your son and you left him with his father through an informal arrangement, you need to start a formal child custody proceeding to obtain custody of your son, which will require different legal forms than a custody modification proceeding.

Divorce is never easy, but we can help. Learn More
How Does a Father Get Custody When the Mother Denies Paternity?

References

Resources

Related articles

Parental Rights in a Non Married Relationship

Marriage is not a prerequisite to parenthood. The Centers for Disease Control and Prevention note that in 2009 alone, a surprising 41 percent of all births were to unwed mothers. For married couples, parental rights are assumed and automatic. While unmarried couples enjoy many of the same parental rights as married couples, the route to establishing those rights is often more complex.

The Father of My Child Has My Son & Won't Give Him to Me, and Neither of Us Have Custody

If you were never married to your child’s father, you probably have legal custody without realizing it, even if you don’t have a court order. If you were married but have separated, you also have legal custody without a court order. However, even with legal custody, there may be difficulties in forcing your child's father to return him to you.

How to File for Child Custody in Georgia

Child custody lawsuits can be contentious and emotionally charged. Before filing for child custody or visitation in Georgia, it's important to think about your child's needs. Except in extreme cases of neglect or abuse, children typically thrive under a joint custody arrangement. In Georgia, the Uniform Child Custody Act of 1978 established statewide standards for child custody proceedings. Each county can institute slightly different procedures, but the goal of protecting children's best interests, and the emphasis on mediation and negotiation rather than contentious litigation, is the same throughout the state. You can file for custody without an attorney, and many Georgia courts provide forms for parents to file themselves. An online document service can also provide you state and county-specific forms. If you plan on taking your custody fight to court, it is wise to hire an attorney who can advocate for you.

Get Divorced Online

Related articles

Can You Lose Custody by Denying Visitation?

You can lose custody of your child by denying the other parent visitation. Denial of visitation can also result in a ...

How Can a Motion for Custody Change Be Dismissed?

A child custody order is modified by filing a motion to change custody. A level of permanence is associated with child ...

Can I Amend a Divorce Decree After Five Months in Wisconsin?

Your divorce decree may address issues like child support, child custody and spousal support, but the decree may become ...

How Old of an Infant for the Father to Have Custody Rights?

There is no set age at which a father suddenly has custody rights to his infant, though age can be considered in ...

Browse by category
Ready to Begin? GET STARTED