When a parent is incarcerated, they often worry about what will happen to their kids. Although an incarcerated parent cannot be physically present for their child, their parental rights do not simply disappear. An attorney can help you understand and assert your rights as an incarcerated parent.
Typically, incarcerated parents may not maintain physical custody of their children, but legal custody may still exist. This means you cannot physically be with your child, but you still have control over things like medical decisions and schooling. Others outside of prison, including family members, may try to interfere with your rights, but an attorney can help you.
Speak with our Bountiful, UT criminal defense lawyers by calling Overson & Bugden at (801) 758-2287 and request a free legal review to begin.
What Rights Do Incarcerated Parents Have in Utah?
If a parent is incarcerated, their parental rights do not automatically terminate. While you might not be physically present with your child, you still have rights as a parent.
Physical Custody
Unfortunately, a parent cannot maintain physical custody while incarcerated. Physical custody refers to your right as a parent to have your child live with you, and you are responsible for their daily care and well-being. If a parent is incarcerated, they may need to make arrangements with family members to take temporary physical custody of their child.
Legal Custody
You may maintain your rights to legal custody of your child. Legal custody generally refers to a parent’s rights over their child’s life and important decisions. For example, legal custody includes the right to make medical decisions for your child, choose where they attend school, and make other significant, long-term decisions.
Legal custody may be maintained separate from physical custody. One parent may have sole physical custody while both parents, even if one is incarcerated, may share joint legal custody.
Visitation
You may also have a right to visitation with your child while you are in prison. Courts tend to favor maintaining strong bonds between parents and children, and others typically cannot interfere with your right to be visited by your child.
However, this right may be limited or suspended by the court under certain circumstances. If the court decides that visitation is not in the best interest of the child, or if the parent is incarcerated because of crimes against children, visitation may be restricted.
Can Parental Rights Be Terminated if You Are Incarcerated in Utah?
Parental rights may be terminated when a parent is incarcerated, but only for specific reasons. Your rights should not terminate solely because you are serving a jail or prison sentence.
Can the State Terminate an Incarcerated Parent’s Rights?
The state may get involved and file a petition to terminate your rights, but only if it has a good reason to do so. Child Protective Services (CPS) may investigate if the parent is incarcerated for crimes against a child or if someone has reported claims of abuse, neglect, or abandonment.
Even then, your rights will not be terminated unless a judge says so. You should contact an attorney as soon as possible if CPS is investigating.
Incarceration and Abandonment
A common reason for terminating parental rights is abandonment. Often, when one parent abandons their child, the other parent will file a petition to terminate the abandoning parent’s parental rights. If you are incarcerated for a long time, your child’s other parent might try to claim abandonment.
Your attorney can help you refute such claims by pointing to the fact that you have regular visitation and phone calls with your child.
Restoring Parental Rights
If your parental rights are terminated, they may be restored after you are released. Our Provo, UT criminal defense lawyers must petition the court to restore your rights, and doing so may not be easy. You must prove you are fit to be a parent, and at least 24 months must have passed since your rights were terminated.
FAQs About the Rights of Incarcerated Parents in Utah Criminal Cases
Do Incarcerated Parents in Utah Still Have Rights Regarding Their Children?
Yes. Even though a parent may be incarcerated, many of their parental rights remain. Incarcerated parents still have the legal authority to make important decisions regarding their children, including schooling, medical treatment, and more.
Do Parents Lose Parental Rights When They Are Incarcerated?
Although parental rights are not totally terminated when a parent is incarcerated, certain rights become impossible. Perhaps the biggest example is physical custody. An incarcerated parent cannot possibly retain physical custody of their child, although their legal custody may remain.
Who Can Terminate Your Parental Rights While You Are Incarcerated?
In many cases, parental rights may be terminated when the other parent or Child Protective Services (CPS) files a petition to terminate parental rights. CPS usually only gets involved if it believes the child has been abused, neglected, or abandoned. Parental rights are generally terminated only if doing so would be in the best interest of the child.
Can the State Claim I Abandoned My Child if I Am Incarcerated?
Possibly. Abandonment is tricky to prove, but it may be grounds to terminate parental rights. Abandonment may be shown if a parent has no contact with a child for an extended period. While incarceration may make it difficult to contact your child, visits and frequent phone calls may help disprove allegations of abandonment.
What Should I Do if My Parental Rights Are Terminated While I am Incarcerated in Utah?
If your parental rights are at risk while you are incarcerated, contact an attorney as soon as possible. Even though you are incarcerated, you have the right to an attorney.
How Can a Lawyer Help Me Protect My Parental Rights While I am Incarcerated in Utah?
Your attorney may help you by evaluating the petition to terminate your parental rights and looking for flaws. For example, the petitioner may claim that you abandoned your child, but your attorney may point to regular visits and phone calls to disprove the allegations.
Seek Help from Our Utah Criminal Defense Lawyers
Speak to our Riverton, UT criminal defense lawyers by calling Overson & Bugden at (801) 758-2287 and ask for a free legal review to begin.