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Does primary custody fall to me when the other parent is incarcerated?

Martinsville, VA |

My son's father and I have joint legal custody but he has primary physical custody. I just found out that he is in jail for 2 months and also got arrested back in April for drugs charges in another state. This is his second offense so therefore he will be pulling some time. Since he is in jail does that mean that the custody falls to me or can his mother refuse to give my son to me for any reason. Also he can't sign over his rights without me knowing can he? Can his mother do anything to keep me from having him?

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Attorney answers 3


Custody rights can not simply be signed away like some piece of property in a power of attorney or a will. It requires a court order to change custodial rights. You as the natural parent are the preferred custodian of your child. The grandparents may petition the court for custody as a "party with a legitimate interest", but barring some significant aggravating factors, they have little chance of gaining custody over you, the natural parent.

If they are refusing to relinquish custody of your son to you, contact an attorney ASAP!

Good luck.

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He cannot simply sign over his position a primary custodial parent to his mother. That must be done through a legal action through the court. This action would need to be filed by the party wishing to be granted custody of the child. Since his incarceration will negatively affect his ability to fulfill his responsibilities as the primary custodial parent, you need to fill a motion to amend the current custody and visitation order with the court. This is a material change in circumstances which will justify the court reconsidering the current order. This needs to be done immediately and I would recommend you seeking out counsel to represent you in this proceeding. The motion to amend would need to be filed with the court that entered the original custody order.


Avvo offers general information and NOT legal advice. Therefore, you need to contact an experienced family lawyer to discuss the particulars in your case. In order to modify an existing order, you need to file a motion to modify the order. You must demonstrate a material change in circumstances that has occurred since entry of the last order. The change must be in the child's best interest. Since the father is presently incarcerated, he is a person under a legal disability and may require the appointment of a Guardian ad Litem to protect his interest. Time is of the essence, therefore, you must contact an attorney ASAP to proceed and protect your interest. Best wishes ~

This response is only intended for informational purposes and is not intended as legal advice or as a substitute for hiring an attorney in your state. Further, by sharing this information, it is in no way intended to establish an attorney client relationship with the reader.

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