Family Law Issues with an Incarcerated Spouse or Parent

Hossein Berenji, May 27, 2016

Incarcerated man. Man in jail behind bars.From the famous Alcatraz to the notorious San Quentin prison, prisons in California have had a substantial place in California’s culture, and a serious role in the lives of many of California’s residents. As of last week, there were 179,612 inmates in the California Department of Corrections system. While we are not criminal defense lawyers, we do practice family law, and there are many cases that come to the family court that involve a spouse or parent who is incarcerated.

Child Support and an Incarcerated Parent

One of the most direct ties between family law and the California prison system is the failure to pay child support. If a court orders you to pay child support, it is your responsibility to make sure that the child receives monthly payments in an amount ordered by a judge. Traditionally, when making a child support order, a judge will order your employer to take child support payments directly out of your wages. This is what is known as a wage assignment, or garnishment.

However, if there is no wage assignment, and you fail to pay child support, you may face harsh consequences. In California, if a court finds that you have enough money to pay for child support but you fail to do so, it can hold you in contempt of court.

If you violate a contempt order, you can go to jail. If you are incarcerated, or if you lose your job, it is important that you contact an experienced attorney to help you modify your child support payments with the court. Even if you are put in jail, the court does not have the authority to change the amount you owe in child support unless you file a request with the court.

Can You File for Child Support if Father is in Jail?

Yes, you can. However, an order will be based on the parent’s current income. An incarcerated parent likely has no income, so it will be difficult to get child support from someone in jail. However, if the parent in jail has savings, assets, or other sources of income, you may be able to secure an enforceable child support order.

Do I Have to Keep Paying Child Support if I am Incarcerated?

California law requires those who are incarcerated to continue to pay child support. Additionally, the law allows for the accumulation of 10% interest on payments that are overdue. Obviously, this poses challenges because few inmates are able to find jobs in a jail, and if they do, the jobs pay substantially less than jobs they may have held prior to incarceration.

Back child support payments and interest can add up quickly, especially because an individual cannot simply just do more jail time for back child support. If you’re in jail, you should immediately contact your local child support agency to modify your support order. For more information about paying child support while an individual is incarcerated, please review this pamphlet created by the California Family Court.

Divorce Involving an Incarcerated in California

California law allows you to file for divorce even if your spouse is incarcerated. While it may seem unfair, a spouse’s incarceration can be the cause for divorce. California is a no-fault state, which means you do not have to prove that your spouse caused the breakup of the marriage, but rather that you and your spouse have irreconcilable differences.

This phrase is open to a wide number of interpretations and California courts have viewed it rather liberally. If the incarcerated and nonincarcerated spouse agree on ending their marriage, the can obtain a divorce by filing a joint petition. In practicality, the non-incarcerated spouse will do most of the work in this type of setting because he or she is freer to attend hearings and consult with attorneys.

In a general sense, an inmate is treated no differently than any other defendant in divorce proceedings. However, a key difference between inmates and traditional defendants exists in terms of notifying the spouse of the divorce proceedings. Just because a spouse may be in jail or prison does not mean they lack any rights in a divorce proceeding. In order to notify an incarcerated spouse of divorce proceedings, you will likely need the assistance of the California Department of Corrections.

When a spouse is incarcerated, service of divorce papers usually happens through the Warden at the jail or prison or through another law enforcement official. Once you have determined which jail or prison a spouse is confined in, you can send your divorce papers to a litigation coordinator at the facility.

You should identify the incarcerated spouse by name and prison number if you know it. Once a litigation coordinator receives the divorce papers you sent, he or she will deliver the papers to a correctional counselor who will serve the papers on the inmate and fill out proof that service occurred. The litigation coordinator will then send you proof of service and it is your responsibility to file this proof of service with the family court.

What if I Want a Divorce While I am Incarcerated in California?

On the other hand, you are also permitted to file for divorce while you are incarcerated. If you or your spouse has lived in California for at least six months, and in the county in which you plan to get a divorce for at least three months, you can file for divorce. This means that if you have been incarcerated in the same jail or prison for three months, you can file for a divorce in the county the correctional facility is located in.

While it is possible to file for divorce in prison, it may not be the best idea. There is a strong possibility a judge will not allow you to appear in court. Additionally, there is no way for you to have physical custody of children. A judge may be more receptive to the fact that you are out of incarceration and have improved your life by obtaining a job, or attending post release counseling.

Another reason to wait to file is that under California law you have no right to attend a divorce hearing. Prisoners do have the right to attend any hearing that may terminate parental rights. However, the line between these types of cases and divorce cases is blurry when children are involved so a judge is just likely to use their discretion.

Child Custody and Incarcerated Spouses

Courts in California make two custody determinations. These determinations are both physical and legal. Physical custody refers to where the children actually live. Legal custody deals more with decisions that affect the child such as where the child will receive health care, where the child will go to school and what type of religious training the child may receive.

A prisoner will never be awarded physical custody for obvious reasons. There is no place for children to live in a correctional facility. Typically, a court will award physical custody to any parent who is not incarcerated barring any unusual circumstances. Upon the end of a jail or prison sentence, it is possible to have an attorney petition the court to change the child custody order.

Best Interests of the Child and Physical Custody

California courts use a standard known as best interests of the child in order to make custody determinations. Even after a release from prison, a court will likely not immediately recognize that the children’s best interests are served by living with someone who is an ex-convict. However, if the court can be shown that the incarcerated individual has made efforts to change their lifestyle, the court may find that it is in the children’s interest to modify the custody order.

To obtain physical custody it is a good idea to have a steady job and sufficient housing upon leaving prison. For legal custody, staying in contact with your children as much as possible while you are incarcerated will likely show a court that you had a genuine interest in remaining in the child’s life.

California Child Visitation and an Incarcerated Parent

Unless a court determines that children visiting an incarcerated parent will not be in their best interests, it is possible that a court will allow visitation in the jail or prison. In order to increase your chances of allowing children to visit an incarcerated parent it is important to set out a detailed plan. Some jails have programs like Children Centers or Family Visiting programs. Some of these programs have toys and games for children and special social workers who discuss issues with parents and children. If the jail you are requesting children to visit has one of these programs it is very beneficial to describe this in your petition for visitation to the judge.

How a Lawyer Can Help?

Whether you or your spouse has been or currently is incarcerated, and you have a legal issue that relates to divorce, child support, child custody or visitation our team of experienced attorneys can help. We understand the additional challenges incarceration present in filing for or getting a divorce. Our family lawyers can help you get your life back on track. Contact us today for a case evaluation of your case.