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Does the non custodial parent have any rights if the parent with sole custody is incarcerated?

Villa Rica, GA |

The ex spouse has sole custody of two minor children. She has been incarcerated with felony charges, and will most likely have to do time. As it stands her father is trying to get her bonded out and put in a mental health facility.
In the mean time, the childre have been with the father, the maternal grandparents have papers where the ex has signed over power of attorney to them, and apparently custody.
What rights does the father have?

This has happened all within the last week. They only way she can be bonded out is to agree to go into a mental health facility, which the maternal grandparents are trying to make happen. Mother lived in marital home in Douglas County. The children have been with the father since the arrest, and do not want to leave. And have been having some long weekend visitations as long as the mother was in the mood for it. I am not understanding how a Power of Attorney, can be valid, if someone is so mentally incompetant that the parents want her committed. She also has pending charges in another county.

Attorney Answers 1


  1. The Father needs to file a Petition for Modification of Custody as soon as possible. He can file this Petition in the county where the ex spouse resides, or where the last Order was entered depending on the circumstances. In order to file such a Petition you must be able to prove that there has been a "substantial change in circumstances" since the entry of the Order granting the ex spouse sole custody. The fact that she has been charged with a felony, and will most likely have to do time will be sufficient for you to file your Modification of Custody action.

    How long have the children been staying with the father? Where does the ex spouse reside, or where did she reside prior to being incarcerated?

    The maternal grandparents will also likely have to be joined as a necessary party as it seems they are the current temporary legal custodians. I strongly suggest that you contact an attorney to discuss things further as soon as possible, as the father will not have any formal legal rights until a Court Order grants him such rights.

    I would be happy to discuss things with you further in a private and confidential consultation at no charge to you, so that you can get a better understanding of the steps and costs involved to file a Petition for Modification of Custody. I can also use that time to get some more information from you, so that I can provide you with better advice.

    Please know that this is a general interest posting and does not create an attorney-client relationship.

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