Balancing the Best Interests of the Child with the Rights of the Incarcerated Parent in Custody Decisions

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Child Custody Rights of Incarcerated Parents

Photo by Daria Obymaha:

A child's world can shatter during a custody dispute between family members. Legal battles such as this can be distressing for a child, especially those old enough to understand what is happening.

The American Psychological Association (APA) believes that parental conflict during judicial proceedings takes serious emotional damage to children caught in the middle. The effects often lead to higher school drop-out rates, mental health issues, and behavior problems that last into their adulthood.

A judge is responsible for deciding on the child's welfare, ensuring that all emotional wounds inflicted on children during the hearings get mended through the love and support of whichever parent gets custodial rights in this case.

Making decisions about child custody is always challenging for everyone, not even a judge. While decision-makers have to consider the different laws and guidelines in every state, the child's best interests are of prime importance.

Arriving at a decision is further complicated when one parent involved in the custody battle is behind bars. To understand how a judge decides on who gets custodial care of a child, here are some questions this article will answer:

  • How can a child get the best interests in custody decisions involving an incarcerated parent?
  • How do the rights of the incarcerated parent affect custody decisions?
  • What legal and ethical considerations come into play when balancing these conflicting interests?

Answers outlining the best for a child are at the heart of custody cases involving incarcerated parents.

As you read this short article, you’ll get an overview of the factors courts may consider during child custody cases.

You’ll be able to closely examine the challenges and considerations that come into play when one parent is incarcerated.

There will also be a short discussion about the legal and ethical framework that guides decision-making in favor of the child’s best interests.

Whenever there’s a child custody proceeding, the court aims to ensure that a child gets the love, affection, and attention they deserve.

It’s already difficult enough to determine custody between competing parents. Still, it gets much more complicated when one or both parents are in prison.

Suppose you’re one of the concerned parties seeking custody of a child, especially countering the claims of an incarcerated parent. In that case, you can refer to this article.

Determining the Child’s Best Interest

In a child custody hearing, the court determines the child's “best interest.” However, though “best interest” may seem simple and plain, it can be difficult for the court to discern.

The dilemma compounds when the case is between two competing parties, with both sides claiming to offer the best for the child.

However, given the difficulty of choosing what's best for a child, different states use the following “best interest factors” to help them arrive at the most reasonable decision during child custody hearings:

  • Emotional ties and the relationship between the child and their parents, siblings, and family and household members, including caregivers
  • The parent’s capacity to provide a safe home and adequate food, clothing, and medical care
  • The physical and mental health needs of a child
  • The parent's physical and mental health
  • The occurrence of domestic violence in the home

         The courts use this set of factors to help determine the best interest of a child and the parents. Note that each state has different statutes concerning child custody and determining factors.

Custody Challenges with Incarcerated Parents   

People might initially think that Incarcerated parents are “not-so-suitable” guardians of their children, especially when it’s common for most people to have the preconceived notion that “all” convicted inmates are “bad” people.

The courts have different parameters to decide on custody cases involving incarcerated parents. It makes decisions not based on personal perception but through informed judgment supported by evidence provided by both parties' counsel.

In the case of incarcerated parents, once one goes to jail, child custody usually goes to the other parent. However, it’s not always the case, as there are instances where determining factors may deny the other parent custody rights for their child.

For example, when a parent goes to jail and the spouse gains custody of their child, that spouse becomes a “custodial parent.”

An incarcerated parent can’t have custody of a child but can share the responsibility of raising the child if the court permits. However, some custodial cases request the court to deny the incarcerated parent any share in the child’s upbringing.

During custodial parenthood, the child lives 100% with the free parent. However, they can agree to visit the incarcerated parent if it’s in the child's best interest.

If both parents are incarcerated, or the child is raised by a single parent, who is now behind bars, custody may fall upon other family members, or the child may go to foster care.

There are cases in which even biological parents can lose their rights over their children while in prison. The basis for the loss of rights depends on the state’s assessment of the parent in question.

In some states, incarcerated parents imprisoned for more than six months without contact with their child can constitute abandonment. However, some states are slowly moving away from this.

Nevertheless, the state may remove an incarcerated parent’s right to child custody if not for the child’s best interest. For example, the state may see an imprisoned individual unfit to be a parent if convicted of drug abuse charges or domestic violence.

Ultimately, the judge’s decision-making is guided by legal and ethical factors generally observed by different states. While all states may provide differing child custody laws, each strives to ensure the children's best interest.

Legal and Ethical Decision-Making Guidance on Child Custody

A child custody case is a sensitive situation for a child. Decisions include choosing where the child will live and receive support, as well as the future upbringing of a minor. For this reason, a judge’s rightful decision is crucial as it can affect the child’s future.

The determining factors of child custody are based on legal and ethical decision-making guidelines. The following principles provide an overview of the guidelines to determine who should have the right to custody of a child.

  • First principle: Acknowledging the child’s vulnerability during custody cases.
  • Second principle: A child’s relationship and attachment to a guardian is considered.
  • Third principle: A child’s long-term living situation and stability is considered.
  • Fourth principle: The person who will assume the child's parent role must be fit to be a parent.
  • Fifth principle: Ensuring the child is not subjected to psychological harm from a custody case.


  1. Cooperating for kids' sake

  1. Determining the Best Interests of the Child

  1. Child Custody when a Parent Is in Jail

  1. The Best Interest of the Child

  1. Can a Parent Lose Their Right to a Child While in Prison?