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Can I get custody of my son if his father is in jail?

Alexandria, VA |

My son's Father recently went to jail and has to serve 12 months. We have no custody agreement set and I would like to know if I will be granted custody now that he's locked up.

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Attorney answers 3


If you have no custody agreement or custody order in place, you are the preferred custodian. So long as there is no order granting custody to someone else, you can go get your son and demand he be given to you. If they refuse, they are kidnapping.

If there is a custody order in place that names the father or someone else as the custodian, you need to file a petition for custody. It would be best for you to consult with a child custody attorney about the procedures.

Responding to questions on AVVO does not establish an attorney-client relationship between the questioner and any attorney associated with Garrett Law Group, PLC. Responses should be considered and used for informational purposes only. Every case is unique in its facts, and all legal matters should be discussed with a licensed attorney prior to making any decisions or taking any actions.


You need to talk to a child custody attorney to file a petition in juvenile & domestic relations court. So long as there are no issues concerning you having custody, such as prior drug history, abuse of the child, or violent criminal history, you should be the preferred custodian of the child. Talk to attorney as soon as possible.

Responses on AVVO do not establish an attorney-client relationship. Answers should be considered for informational purposes only. Please seek the advice of counsel in your local area prior to initiating or responding to any legal actions.


Yes, you would be granted temporary custody until he is released. If he doesnt consent, then file a petition with the JDR court where you live, so they can order the same.