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What rights does a father in jail have?

Chicago, IL |

My baby is 5 months and he has never seen her, he has multiple felony charges for drug consipracy and selling to minors. Now that he is in jail he wants to claim rights. And his family is pushing me to allow him to. What can I do? And what rights does he really have?

Attorney Answers 4

Posted

He has no rights unless he establishes a legal relationship with baby
by signing a voluntary acknowledgement of parentage or by court order. Being the biological father isn't enough to confer legal rights.
Until and unless he establishes this critical legal relationship, you are under no legal obligation to bring baby to jail. He would have to establish to the satisfaction of the judge that it would be in an infants best interests to visit with him, a felon, in jail. I think that would be a heavy burden for him. Do what's right for your baby: ignore his family's demands.

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4 comments

Asker

Posted

He isn't on the birth certificate but we are legaly married, does that change things?

Elizabeth M. Feely

Elizabeth M. Feely

Posted

Yes, that changes things. Since you are married, he is presumed to be her father and is therefore entitled to all of the rights as a father.

Elizabeth M. Feely

Elizabeth M. Feely

Posted

He would have to petition for divorce, and separately petition for visitation in jail. I don't know of a way, except to ask you for a divorce that he can compel you ( if judge orders it which is unlikely).

Asker

Posted

When I file for divorce, let's say the judge releases him of his rights. What about his family? Am I obligated to taker to them?

Posted

The answer to your question depends upon whether the father has signed the Voluntary Acknowledgement of Paternity and the child's birth certificate or whether he has at least registered with the Putative Father registry. It appears you know the man is your daughter's biological father but unless and until he has signed the papers mentioned, or been deemed the father in court, he is not legally the father and therefore has no rights or responsibilities concerning the child. If he has no rights, he is also not liable for child or other financial support.

As for the man's family pushing you to allow him to "claim rights," what exactly does that mean? At this point, nothing. The man's family has no standing to push anything. Go consult with an attorney so that if and when the man files legal papers, you are prepared to move forward. For now, you do not need to do or agree to anything.

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Judy A. Goldstein

Judy A. Goldstein

Posted

I just read the comments under Ms. Feely's response. The information there changes everything. You never mentioned that you are married to your daughter's father. He is then presumed to be the father and automatically has both rights and responsibilities, even while in jail. Go see a lawyer right away. Since your marriage in an important fact, you might wish to include that as an additional comment for other lawyers who may respond.

Posted

Okay, so, he's not just the father, he's also your husband. That changes things. The "rights" you're worried about are defined by a court. If you nor he files papers in divorce court, then no rights will ever be defined.

If, however, you or he files for divorce, then he could ask for visitation rights (and you could seek support). His "rights" would be defined in the court's order.

There are a few ways outside of divorce court that rights could be defined, but they are rarely used.

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Gary L. Schlesinger

Gary L. Schlesinger

Posted

as the legal father he does have rights. he may inherit from the child. he has the right to be physically with his child but being in jail trumps that. the child has the right to have the father's name. there are probably others but i am not a probate/estate planning lawyer.

Wes Cowell

Wes Cowell

Posted

Yeah, you're right about the inheritance issue. I overlooked that one. Court ordered visitation is possible in prison, as long as it satisfies the best interest standard. I once argued such a case ages ago . . . and lost. Don't see how that could fly, here, either, really. But, consider, for example, a case of white collar crime where the wife/mother supported and stood by the husband/father and both were good parents and there were generally good relations throughout the trial and sentencing (Rod and Patty Blagojevich, come to mind). In the event of a later divorce, I could see how a court could order visitation even in a prison setting. There was a case ( Frail ) where the court ordered visits for a once-custodial-mother incarcerated for the murder of husband #2 (the kids had been born to the first marriage and husband #1 got custody when Mom went to prison). So, visitation could be a possibility . . . but an extremely unlikely one.

Posted

if he had the multiple felonies before you married him or before you conceived a child with him, you cannot complain about that now. you made those choices knowing who and what he is.

as your husband, this child is legally his. he does have rights that come with that but also responsibilities.

you may ignore his family if you wish. it has no rights yet.

best for you to consult with a lawyer.

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