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How is joint child custody affected if one parent is sentenced to serve time in prison? Can I file for sole custody?

Clearwater, FL |

We have a 7year old daughter and when we divorced it was granted that we share custody however since 2008 he has not provided her with a stable environment to live, has not held a steady job (has a new job at least 5-7 times per year sometimes more), I have paid for all of her daycare and medical expenses from day one with no assistance from him, and has a past criminal history that has now caught up with him and he is not absconded from the law and we are being told that when found he will serve time in prison. As of May 23rd I have had my daughter full time, he was unable to pick her up during his scheduled week because of no place to live and we have only spoke and seen him one time during this time. What can I do to get sole custody and can I file documents myself without attorney?

Attorney Answers 4

  1. Getting "sole custody" as you say is not the easiest of tasks. You can definitely attempt to file a modification action based on what is going, but it also does not sound like he is actually serving time in prison right now. Obviously, if he is in prison, you have sole custody for all intents and purposes. I would not recommend filing anything without an attorney on your side.

    You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family & criminal law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-377-6828. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

  2. You could probably file for sole custody based on his abandonment of his daughter, but, if he shows up for court (which I'm sure he won't do given that he appears to have a warrant out) or if he files pleadings, you might lose. If you goes to prison, you will almost certainly win, at least for the time he in incarcerated. Why would you want to file, though? Why go to the time and expense? Don't you already pretty much have sole custody, even though not legally? Are you afraid he'll show up and take her? That doesn't seem likely, given the circumstances.

    The contents of this answer should be considered friendly advice, not legal advice (I'm a pretty friendly guy), and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me for a free consultation at 813-635-0222. Also, if you liked this answer as much as my big ego thinks you did, be sure to click the thumbs-up button!

  3. Avvo Email

    While the father is incarcerated, you have sole custody since he obviously
    cannot exercise any contact from jail.

    No one else can use his contact rights unless they file some kind of
    pleading and can convince a court to do so, and that is unlikely.

    If he is a fugitive, you should not allow contact since he would have to
    surrender to the court in order to complain about it.

    These are general rules and you should have a lawyer review the facts with
    you to be sure they apply.


  4. If your ex is in jail or is about to be then yes you will get sole custody. You should use a lawyer.

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