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Parental Incarceration in Custody Matters


Family in need of attorney

The Gainesville Child Custody Attorneys of The Law Office of Alba & Yochim P.A. understand that every family’s situation is different. When issues over custodial and parental rights arise during, or as a result of, a parent being incarcerated, the other parent may have several questions and concerns over how the incarceration may impact a custody determination. Public policy in Florida mandates that ‘each minor child has frequent and continuing contact with both parents,’ and therefore there is no presumption for or against either parent. However, custody matters involving parental incarceration are unique, in that they can create a rebuttable presumption of detriment to the child.

A rebuttable presumption, in contrast to one that is absolute or conclusive, affords the party that is subject to such presumption, the opportunity to refute, disprove, negate (aka ‘rebut’) the presumption. In child custody proceedings, a rebuttable presumption can arise due the presence of two primary issues—domestic violence and parental incarceration. Here we limit our discussion to parental incarceration, however, in either case, if a parent fails to rebut the presumption, after being advised by the court, the court is precluded from granting shared parental responsibility, including time-sharing with the child.

With regard to incarceration issues in custody matters, parents should know that a parent’s incarceration, in and of itself, will not automatically create a (rebuttable) presumption. Rather, the presumption is created only if the incarceration meets the statutory criteria set forth under Florida Statute 39.806(1)(d), which pertains to Termination of Parental Rights. Pursuant to this statute, and in conjunction with §61.13(2)(c)(2), there are three circumstances in which a parent’s incarceration can result in a rebuttable presumption of detriment to a child, as to the incarcerated parent, each of which are discussed below.

Circumstance #1 – The parent’s period of incarceration constitutes significant portion of the child’s minority.

Parents should note the termination of rights cannot rest exclusively on the length of incarceration. Rather, the incarceration period must be considered in in light of other statutory requirements, including “the child’s age and the child’s need for a permanent and stable home.” In most cases, the court will compare the length of incarceration to the length of time until the child reaches the age of 18, which is then often reduced to a percentage.

For example, where a 15 year-old child is subject to a custody proceeding, and a parent is expected to be incarcerated for 2 years, the period of incarceration represents 2/3 of the child’s minority, and therefore would constitute a ‘significant portion.’ Compare this to where the parent of a 2 month-old child is expected to be incarcerated for 9 years. Here, although the period of incarceration represents only half of the child’s minority, the court could find termination best for the child, given the parent’s absence during the child’s formative years.

Parents should also know that calculating ‘significant portion,’ “requires the court to evaluate whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen, not whether the time the parent has been incarcerated in the past is a substantial portion of the child’s life to date.” See, BC v. Dept. of Children and Families, 887 So. 2d 1046 (Fla. 2004).

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Circumstance #2 – The parent’s incarceration results in classification as a specific type of offender, or involves a certain type of offense

Grounds for termination of parental rights exist where a parent is incarcerated and has been determined by the court to be:

  • A violent career criminal
  • A habitual violent offender
  • A Sexual predator

Incarceration due to conviction for the following offenses, also constitutes grounds for termination of parental rights:

  • Murder (1st or 2nd degree)
  • Sexual Battery (capital, life, or 1st degree felony)
  • Conviction in another jurisdiction for Substantially Similar Offense (the state where the crime occurred uses different terminology in defining an offense, but the crime would be considered one of the above-listed had it occurred in Florida)
Circumstance #3 – Continuing the parental relationship during incarceration would be harmful to the child

Here the court must evaluate harm in terms of what is in the best interests of the child, and base its finding upon ‘clear and convincing’ evidence, which means that it is more likely than not that the child would be harmed if their relationship with the incarcerated apparent were to continue. The court will consider the following factors in determining harm:

  • The age of the child.
  • The relationship between the child and the parent.
  • The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
  • The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
  • Any other factor the court deems relevant.

Note the distinction between termination on other grounds, where the court CAN consider prior incarceration, as opposed to when termination is based upon the incarceration constituting a ‘significant portion of the child’s minority,’ in which past incarceration generally CANNOT be considered in determining whether the length of imprisonment is significant enough to warrant termination of rights.

Whether you are a parent seeking to prove detriment based upon the other parent’s incarceration, or a parent defending a presumption of detriment due to current or expected incarceration, having a legal advocate on your side can make all the difference. The Gainesville Attorneys of The Law Office of Alba & Yochim P.A. offer child custody legal services in a variety of capacities—consulting, limited capacity, and full representation. Whatever your custodial needs may be, we are here to help.