Can I Obtain Child Custody While in Prison?

In march of 2013, my common law wife filed for temporary custody of our daughter on the grounds that I was in jail and was going to go to prison. Since I gotten out of jail, I have asked to see my daughter and she has repeatedly said “No” and to take her to court. I have recently gone to court to get visitation rights, but the court said that they have no file of this, and stated that I had 30 days upon release from prison to contest her actions, and that if I didn’t, she would obtain sole custody. What do I do? I want to be a part of my daughter’s life.

This sounds like a situation where you should definitely consult a family law attorney. Many have payment plans available, and their knowledge of your state’s laws and court requirements will help you protect your rights. State laws in a situation like this can vary widely, so you will benefit greatly from getting local advice.

With that said, it sounds like the temporary custody order may have automatically changed to a permanent custody order if you didn’t petition the court within the 30 day time limit you were quoted by the court. It’s important to know that this is a custody order; you have probably not lost your parental rights. The ability to parent your child is considered a fundamental right under the U.S. Constitution, and can only be lost when you are proven to be an unfit parent. It would be unusual for the failure to comply with a relatively short time limitation would be sufficient to establish that you are unfit to parent. What you can probably do is to petition the court for a modification of the custody order. Although modifications are often an uphill battle, courts will consider them when there has been a substantial change in circumstances. Your leaving prison could be enough to allow for a modification. Other positive steps in your life, such as having steady employment, having a proven record of sobriety if substance abuse was an issue, or having a safe and child-appropriate place to live, could strengthen your request for a modification. Keep in mind that if a court does consider a modification of the custody order, they may also consider a modification of child support. This may result in you having to pay more in child support than you are now. There is also no guarantee a petition for modification would be successful. These are both reasons why consulting a local attorney would be very beneficial.