Disclaimer:  The legal information provided on this website is the product of Legal Aid NorthWest Texas (LANWT). None of the legal information on this website is associated with or the product of the Office of the Attorney General of Texas or any of its employees.

VISITATION RIGHTS OF INCARCERATED PARENTS

Divorce or paternity decrees usually give the non-custodial parent (NCP) certain rights and duties to contact the children.  A subsequent criminal conviction does not affect those rights unless specifically addressed by the court.

An NCP may have been denied visitation rights in a separate court action or may not have received visitation rights if incarcerated before the establishment of those rights. Once released, the NCP can petition the Court for visitation rights.  The rights may be limited by the Court after it considers information relevant to what visitation, if any, is in the best interest of the children, including whether the crime was a drug offense, etc.

The Court will only allow children to visit an incarcerated parent if it is in the best interest of the child, a rare occurrence.

In reaching a decision, the Court considers:  little prior contact with the child, the age of the child, the length of the incarceration; a pattern or history of family violence; whether or not connected with this custodial parent (CP) or child, the distance the child must travel to visit; and whether someone can bring the child to visit.  Factors that preclude visitation under any circumstances are conviction of sexual crimes, particularly with a child.

The Court that hears a suit to enforce parental rights will note whether an NCP brought frivolous attempts to get a child they’ve rarely seen to visit them while in prison.  This will be considered by the same judge when an NCP is released and able to bring a credible suit to establish or enforce visitation rights.

Although in many types of cases, a prisoner can read the statutes and research the law and come up with a reasonable petition to bring before the court, family law is practiced differently in each county.  Each District Court has its own policies and procedures. Each county has additional local rules that must be followed.  Any petition must be served on the opposing party, and once service has been affected, the case must be set for a hearing, and notice given to the other party.  The prisoner must then bench warrant himself or herself for the hearing.  The bench warrant can be denied and a default taken when the prisoner does not show up. 

While anyone is technically entitled to petition the court for the appointment of an ad litem to assist them in enforcing visitation rights, on a tight budget, and with a slender likelihood of success, a judge is unlikely to expend its resources providing an attorney to assist you.  Legal Aid, which rarely has funds to enforce parental rights, is prohibited by its funding source from assisting incarcerated persons.

While you are incarcerated, you may have rights, but are without the ability to impose them on the child or CP.  This is what is called in the law a right with no remedy.

Incarcerated parents may be able to write letters to a child, and perhaps telephone the child.  The CP may not allow either form of contact.  If allowed, discuss with the other parent the possibility of writing or telephoning the children.