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Ask Ali Kirk Your Own Question

Ali Kirk
Ali Kirk, Lawyer
Category: Family Law
Satisfied Customers: 244
Experience:  14+ years experience in divorce, custody, visitation, child support and paternity matters.
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mother incarsirated for 6months; she had primary residencey

Customer Question

mother incarsirated for 6months; she had primary residencey and 50/50 custody with father. when father found out mother was in jail he took the child and the child remand for 9 months with us. there now is a contempt order against the father. did the mother lose her rights when incarsirated??
Submitted: 5 years ago.
Category: Family Law
Expert:  Ali Kirk replied 5 years ago.
Hello, and thank you for your question.

Custody is premised on “the best interests of the child.” Generally speaking, a court will find that it is not consistent with the safety and security of a child, for the child to be in the custody of a parent who is incarcerated.

Therefore , if one parent is incarcerated and the other is not, and the other parent is willing, able and qualified to be the child’s custodial parent, he/she will normally be granted custody (unless there is some compelling or substantial reason for not doing so).

During the period the mother was incarcerated, she did obviously lose the rights to 50/50 custody, however, once she was released, the original custody order is still in effect, therefore, if the father kept the child and prevented the mother from seeing the child, etc., he could be considered in contempt.

If the situation is one now where the father believes that the mother should no longer share 50/50 custody, he can file a motion to modify the custody (as already has been done). He would have to prove to the judge that there has been a substantial change in circumstances that warrant modification. You should know that typically, judges are reluctant to change the original custody arrangements, however, and it could be a hard fight that may ultimately be unsuccessful.

I am not sure if you have a lawyer already or if you are handling things on your own, but if the situation progresses or gets more complicated, I would advise you speak with a local family law attorney about these issues. Typically, attorneys with 1-5 years experience offer lower fees.

Good luck to you. If you have any additional questions, please press the reply button, and I will be happy to assist you further.

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