You are required to notify the children's father if you petition the court for sole custody. He has the right to appear and contest your petition if he chooses to do so. However, if he is incarcerated, as a practical matter there is obviously no way for him to exercise physical custody over the children. That does not mean, however, that he can't petition the court for a modification once he is released. The overriding concern of the court in custody matters is what is in the best interest of the children. I strongly recommend that you contact a custody attorney to discuss your case in depth. With the details you provide, your attorney can better advise you as to your options.
There are two issues here. While he is in jail, you should receive primary physical and legal custody. In some cases, visitation can be arranged within the prison rules: whether this is appropriate depends on the age of the children, and their prior relationship with the father.
After his release, the court will decide the father's rights, and should consider all of the factors affecting the children. The law specifically states that his history of drug use, and any drug convictions should be considered, although that doesn't completely rule out the possibility of his having some form of contact with the children.
This is not intended to provide legal advice about your situation - just a few casual remarks about a legal question. We are a debt relief agency helping people file for bankruptcy.
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