Incarceration, Child Custody & Visitation in Texas

In the state of Texas, family law encompasses a broad range of matters, including child custody and visitation rights. A fundamental principle of Texas family law is the best interest of the child, which guides all decisions related to child custody and visitation.

Typically, Texas courts prefer joint custody arrangements, where both parents share responsibilities and time with the child. However, certain circumstances, such as the incarceration of a parent, can significantly impact these arrangements.

In this blog, we will discuss the factors the court considers when determining child custody. We will also talk about the impact a parent’s incarceration can have on their parental rights as well as their child custody or visitation agreement.

Who Gets Child Custody When One Party Is Incarcerated?

The primary criterion for determining child custody and visitation in Texas is the best interest of the child. This includes considering the child's emotional and physical needs, the ability of the parents to meet these needs, any potential harm to the child, the stability of the home environment, and, in some cases, the child's own wishes.

In situations where a parent has been incarcerated, the court will take into account the nature of the offense, the length of the sentence, and how the imprisonment may affect the child. The court will also consider the incarcerated parent's past relationship with the child and their ability to provide a stable and suitable environment upon release.

If a parent is incarcerated when a custody case is brought forward, they will still be expected to respond to the court filings. However, the other party will obtain physical custody, as it is not possible to maintain physical custody while incarcerated.

It is also important to note that parents, including those who are imprisoned, are not entitled to have a family lawyer represent them. You can obtain representation if you so choose. In termination cases, a parent does have the right to a lawyer.

Do Incarcerated Parents Have Any Parental Rights?

The termination of parental rights is a court-ordered process, permanently severing the legal relationship between a parent and their child. This means the parent loses all rights and responsibilities regarding the child, including visitation, decision-making, and child support obligations. Termination can occur voluntarily through signed agreements or involuntarily through court action based on specific grounds like abuse, neglect, or abandonment.

A parent cannot simply have their parental rights terminated because of their incarceration. However, if a parent is convicted of a crime that involved a child being harmed or being the victim of the crime, they can have their parental rights terminated.

As outlined in Texas Family Code Chapter 161, the court can terminate parental rights if they have been presented “clear and convincing evidence” that the parent has been placed under supervision, including deferred adjudication community supervision, or been convicted of being criminally responsible for the serious injury or death of a child under the following criminal charges:

  • murder,
  • capital murder,
  • manslaughter,
  • assault,
  • aggravated assault,
  • sexual assault,
  • aggravated sexual assault,
  • indecency with a child,
  • compelling prosecution,
  • trafficking of persons,
  • possession or promotion of child pornography,
  • sexual performance by a child,
  • prohibited sexual conduct,
  • abandoning or endangering a child, disabled person, or elderly person, or
  • injury to a child, elderly person, or disabled person.

While a conviction for drug charges does not allow the court to terminate custody, it is important to note that they can consider the conviction or evidence of drug abuse when making custody determinations. The court can also move to have parental rights terminated if there is substantial evidence proving that a parent acted in such a way that they knowingly placed their child’s physical or emotional health in danger. Thus, the court may consider drug offense convictions and details about associated arrests.

A person’s parental rights can also be terminated in the following instances:

  • The parent is convicted of the murder of the child’s other parent, criminal solicitation, the sexual assault of the child’s other parent, or criminal attempt.
  • The parent failed to comply with court orders that outline how a parent can have their child returned (after having been placed with the Department of Family and Protective Services for nine or more months).

Can a Custodial Parent Bring Children for Visits?

Yes, if a parent is incarcerated and is allowed visitors, the other parent can bring them for visits. However, if a party is incarcerated after their custodial arrangement is ordered and the agreement does not mention incarceration, the custodial parent is not legally required to bring a child for visits.

In such cases, the incarcerated parent may opt to call or write to their child. However, again, unless the court orders award a parent a form of contact, the custodial parent can decline the calls or limit communication in other ways. It is important to note that a parent can ask the other party to give them written permission to contact their child in some way during their imprisonment.

Considerations When Taking Your Child to Visit Incarcerated Parent

Preparing a child for a visit to a parent in prison can be a challenging task. It's important to acknowledge that the child's needs may differ from those of the adult, and they may desire to see their parent regardless of the circumstances or your opinions on the incarcerated parent.

To prepare your child, start by having an open and age-appropriate conversation about why their parent is in prison. Use simple language that they can understand while being honest and factual.

It's also crucial to help them anticipate what they might see or experience during the visit. Discuss the security measures, the environment, and the rules they'll need to follow. It may also be beneficial to read books or watch videos that depict similar situations to help them visualize and understand the scenario better.

Finally, reassure them that it's okay to have mixed feelings about the visit and encourage them to express their thoughts and emotions freely. It might also be helpful to engage the services of a mental health professional who specializes in child psychology to guide you and provide additional support for your child.

Can a Parent Regain Custody After Incarceration?

Yes. A parent can regain custody after incarceration, but the process varies and can be complex. The process of regaining custody often requires adherence to court orders, judicial decisions, and legal assistance. For instance, the court may prescribe an improvement period during which the parent must demonstrate significant efforts to improve their situation.

However, the nature of the crime committed can also influence the decision. As we mentioned, regaining custody may not be an option if parental rights have been terminated and certain offenses do allow the court to involuntarily terminate parental rights.

Experienced Family Law Council

At The Clark Law Firm, we are backed by decades of collective experience and have helped countless clients successfully navigate their family law cases. We handle a wide range of family law cases, including child custody and visitation matters, as well as termination cases. If either parent is or has been incarcerated and convicted of a criminal offense, our team can talk you through how that can affect your case, what your legal options are, and what strategies you should employ to support your case goals.

Get in touchwith our firm online or via phone at (817) 435-4970 to schedule an initial consultation.


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