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Prison May Not Affect Arizona Child Custody Rights

The attorneys at GillespieShields practice family, employment, civil, criminal, and immigration law.

What are the Parental Rights of Incarcerated Parents in Arizona?

Arizona family courts do not take the termination of parental rights lightly. The belief that incarcerated individuals automatically lose all legal rights as parents is incorrect. A judge cannot terminate the parental rights of incarcerated parents without establishing just cause.

What if the Custodial Parent is in Jail?

Physical child custody obviously is not an option when a parent is behind bars. However, legal custody, even joint custody, is possible. Again, under Arizona law, terminating the parental rights of incarcerated fathers or mothers is not automatic.

What Rights Do You have in Prison?

To obtain or maintain custody, an individual must be determined by the court to be a fit parent. An individual’s fitness to be a parent is determined by multiple factors and incarceration affects judges’ decisions on parental rights. Those decisions depend on the nature of a parent’s crime and the length of a prison term. Felonies may be grounds for unfitness, as well as prison sentences that are so long that a child is prevented from having a “normal home life” for many years. However, in the state of Arizona, simply being in prison is not grounds for immediately severing parental rights.The Arizona Department of Child Safety clearly states that their department will provide reunification services to incarcerated parents and they will ensure that the parents are able to participate in visitations, services, and case plan staffing.

If a parent’s custody rights are in question, the parent has the right to a court hearing on the matter. It is then up to the court to decide whether or not a parent is able to maintain their parental custody rights while in prison.

What Do Judges Look for in Child Custody Cases Involving a Parent in Jail?

The judge will take several things into consideration, including:

  • the age of the child and the relationship between the child’s age and the likelihood that incarceration will deprive the child of a permanent living arrangement;
  • the relationship of the child and parent prior to incarceration;
  • the degree to which the parent-child relationship can be continued and nurtured during incarceration;
  • the effect of deprivation of parental presence on the child;
  • the nature of the felony;
  • the length of the sentence;
  • the availability of another parent or caregiver to provide a normal home life.

We Can Answer Your Child Custody Questions

If you have questions regarding your child custody rights, please call us at 602-870-9700 (Phoenix) or 480-985-4000 (Mesa) or contact us to request a consultation today.

Source: Arizona Department of Child Safety: Policy and Procedure Manual, Chapter 3: Section 10.2 Services for Incarcerated Parents


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