Do Incarcerated Parents Have Any Timesharing Rights?
As many parents know, in order to foster a lasting and meaningful relationship with a child, consistent interaction and involvement in the child’s daily life is necessary. When parents divorce, the one receiving less parenting time, as part of the timesharing order, is bound to notice a shift in the parent/child relationship, but this difference can be overcome if the parent makes an effort to remain an active part of his/her child’s life. For incarcerated parents, the opportunities for parent/child interaction are significantly limited at best, and are sometimes completely unavailable. Certainly, exposing a child to the environment of jail or prison presents risks to the child’s wellbeing and emotional development, but should contact be cut off in all cases?
A hip-hop artist recently arrested for probation violations is continuing his fight for custody of his son from jail. Both the incarcerated and non-incarcerated parent has an important interest in knowing how this situation affects timesharing rights. A review of how the law handles this limitation on a parent’s capacity for involvement with his/her child will follow below.
Timesharing Law in Florida Generally
Florida wants to promote frequent and continuing contact between a child and both parents, and does so by preferring to award shared parental responsibility. However, the best interests of the child will always be the overriding factor in any child-related decision, and circumstances the court deems to be detrimental to the child will justify deviating from this shared responsibility standard. Visitation with a parent would be viewed as a detriment if the contact endangers the child’s physical, mental or emotional health. If a court finds visitation would be detrimental, it would likely grant sole custody to one parent, and may or may not provide for time-sharing with the parent considered a risk to the child.
The Effect of Incarceration
A court is likely to suspend visitation with a parent during his/her period of incarceration because seeing the parent in this setting would probably traumatize the child. Further, it is also unlikely a judge would require the custodial parent to transport the child to and from the correctional facility to allow visitation. In rare instances, a court can permit visitation if a relative is willing to bring the child. The incarcerated parent does have the right to request a modification of the timesharing order if visitation is suspended or denied, but will have a difficult time proving that visitation would benefit the child, which is necessary for a court to approve in-person contact.
Another larger and more pressing issue facing incarcerated parents is the possibility they may permanently lose all parental rights. Under Florida law, the State can terminate parental rights if a parent is incarcerated and any of the following circumstances is true:
- the parent is expected to be incarcerated for a significant period of his/her son or daughter’s childhood. Whether the incarceration is considered significant depends upon the child’s age and need for a stable home;
- the parent was convicted of certain designated offenses, including sexual battery or first or second degree murder;
- the parent qualifies as sexual predator, violent career criminal (three or more violent felony convictions) or habitual violent felony offender (multiple violent felony convictions); or
- a court determines visitation with the incarcerated parent would be harmful to the child, in which the determination is based on child’s age, the parent/child relationship, the parent’s past criminal behavior and the parent’s present and past ability to address the child’s mental and physical needs.
Talk to a Family Law Attorney
Timesharing issues when a parent is incarcerated are very complicated and case specific. An experienced family law attorney needs to review the facts of each individual case to determine if visitation or other custody rights are appropriate. Attorney Joyce A. Julian, P.A. understands how sensitive timesharing issues are, and has extensive experience negotiating parenting time and timesharing arrangements. If you live in the Fort Lauderdale area, contact the office today to schedule a free consultation.