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RobertJDFL, Lawyer
Category: Family Law
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Experience:  Experienced in multiple areas of the law.
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My husband has been incarcerated for almost 10 years in the

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My husband has been incarcerated for almost 10 years in the state of Texas. I have been the sole provider for my 4 children over those 10 years. The only reason I haven't divorced him sooner is because I am afraid that once I do he will put in a petition to have more visitation with the children. My feeling is not to be vindictive, but I want to protect my children and I don't want them to see him in this situation. so it is it only maybe once a year. my question is can he put in such a petition or do I have grounds to keep it the way it is?
Thank you for your question.

When deciding issues of custody and visitation, a court is always going to look at what is in the best interest of the children, and so they look at a number of factors - who the primary caregiver is, who is best able to care for the children, the relationship of the children to each parent, the physical, mental and emotional health of the children, risk factors such as criminal history, etc. So, while a judge wants children to have a relationship with both parents whenever possible, so long as your husband is incarcerated, I suspect that a judge is going to limit the amount of visitation he actually gets because subjecting children to go into a prison is obviously hard on them.

Now, visitation isn't set in stone, so if the situation changes later on - say, your husband is released at some point, and gets his life together -- he can petition to modify the custody agreement and ask for more visitation. But a modification requires that he show a "significant change in circumstances" since the time of the original order, and that it is in the best interest of the children to modify the order. That is a very, very high burden to meet, but it is theoretically possible that yes, in the future, he could get more visitation.
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