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Raising Children with Parents in Prison For the Parent left behind with children AND for the Children that have a parent inside. Discussion of unique challenges facing this group!

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Old 07-22-2005, 05:56 AM
bigdkt bigdkt is offline
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Default ex-wife won't let kids visit their daddy

Hi! My husband was sent to a camp in June for 6 months. He has 3 children by his ex-wife with which he shares joint custody. However, his ex-wife will not let me or his parents even take them to see there daddy or even see them. However, she is mad because I quit sending her child support because she is not adhering to the court orders of the divorce decree. Is there anything I can do to either make her let the kids go see there daddy or forfeit her child support since she is not abiding by the divorce decree with visitation?
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Old 07-22-2005, 06:53 AM
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I don't think there's anything you can do, but your husand needs to check at his prison to see what organizations there are for father's rights and get some help that way. Your in laws can also check with the courts to see what rights they have as grandparents!

good luck!
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Old 07-22-2005, 06:59 AM
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In Texas, child support and visitation are separate issues. Him not paying child support when he is incarcerated is way different than denying visitation during that time. Read the decree, see if there is the stipulation that another competent adult can pick up the children. If it states something about that, your husband should be able to take it back to court for contempt. That's how it works in Texas so not sure where you are. But, the grandparents should also check into their rights.

Good Luck with it.
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Old 07-22-2005, 08:29 AM
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Well I am from NY and not sure of the laws wher eyou are from but I don't think there is much you can do. I am sorry for your husband as I am sure he misses them however you must at ths point respect the mothers decision to not allow them to visit during his incarceration. That is a touchy matter and not all are for it. As there mother she has that right to decide. I do however feel that the money issue is something separate and why deny the children to spite her. In the end your husband will owe back money and will have still not seen his children. Just something to think about. Good Luck!
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Old 08-24-2005, 11:01 AM
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I hope you have checked into this. As far as I know. He will still owe that child support. You are not helping the situation by withholding it. Talk to the court . I believe she can be made to let them go.
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Old 10-19-2005, 08:28 PM
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Just a quick reply from someone who is on both sides of the fence. 1) As a correctional officer I see children come to visitation at the same time inappropriate behavior is going on and also in the same room as child molestors etc.... Just a factor to consider morally. Do you want kids to see these things or be subjected to molestors eyeballing them? 2) During my divorce my divorce my kids dad was just starting a prison sentence for armed robbery. (We seperated due to CDV 6 months prior to him committing the crime.) The judge took into consideration that I was the sole provider for my kids and had to raise them on my own and that it would put false morals in their heads by being subjected to the prison environment.
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Old 10-19-2005, 10:38 PM
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To scngagirl:

Visiting their father in a prison will NOT put false morals in them. What do they see?Wouldnt they see people being punished for their crimes.? Wouldnt they see a father who no doubt loves them.? I think you will be punishing your children and they may hold it against you if you keep them from him. IMHO
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Old 10-20-2005, 12:02 AM
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Isn't the prison and CO"s job, to not let anything immoral happen while visiting?? The child molesters are in prison, what are they going to do? And what makes you so sure they are not living by S.O"s?
All prisoners are in there, doing their time for whatever reason, they still have a life, family, friends etc that they need to be visited by.
Check out the fathers' rights' with the prison or advocate, for what he can do to see his own kids. I.M.O.
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Old 10-20-2005, 08:37 AM
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Quote:
Isn't the prison and CO"s job, to not let anything immoral happen while visiting??
I agree fully! If there's inappropriate things going on in the Visiting Room then the C/O's are not doing their jobs and the prison isn't doing theirs either by not reprimanding officers for allowing things like this to go on!
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Old 10-20-2005, 08:51 AM
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Quote:
Originally Posted by bigdkt
Is there anything I can do to either make her let the kids go see there daddy or forfeit her child support since she is not abiding by the divorce decree with visitation?
Why would you want to forfeit the child support? Two wrongs don't make a right. I would however do as key jo suggested and read the court decree, to fully understand what his rights are; and pursue visitation vehemently. Child support and visitation are two different items. He is not ordered to pay child support so they will visit him. And likewise child support is not payment for them to visit him. He should definitely assert his rights to be a father to his children... both physically, and emotionally through visitation; and financially through support.
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Old 10-20-2005, 09:12 AM
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As everyone has said, the support and visitation are entirely seperate issues. My personal feeling though is that there is absolutely nothing morally compromising about visiting a beloved parent, and that a child could as easily be being ogled by an SO at the mall or the beach- as long as that child has a protective parent by their side,, they are safe...much less under the gaze of the COs!
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Old 10-22-2005, 12:55 AM
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I'm not sure on what can be done on your situation, I just wanted to make a comment. Your husband's ex sounds exactly like my mom. My mom's husband (maybe ex now) has a daughter with her and my mom makes it a point to tell him that they are coming for a visit and then don't just to hurt him. What she doesn't realize is that it's not only hurting him it's hurting my little sister as well. Hannah (my little sister) just turned 9 in July and was only a little over the age of 1 when her dad went to prison, I would say from the time he went up to about a year ago she had only seen him approximetly 8 times. He was only 250 miles away from where we lived. He is now about 150 miles away and Hannah has seen him much more. The only messed up thing about it is, she hasn't seen him more because of a him being closer to us. She has been seeing him more because she at the age of 8 stood up to my mom and told her I want to know my dad and I don't like that you try and keep him from me, whenever my family goes to visit him I'm going to start going with them. Crazy that an 8 year old very timid girl would say this to her mother, honestly I probably wouldn't believe it if I hadn't heard her say it with my own ears. Anyway, I guess what I'm trying to say is I think it is extremely messed up that any parent would keep their child or children away from the other parent for any reason when one was incarsarated. And as for the whole there are/may be child molestors in the same room, I personally think that is a bunch of bull. There is no reason that you can not send your child(ren) to a secure facility full of correctional officers. I mean come on could someone please think of a lamer excuse? I'm sorry if that comment offened anyone, but that is only my opinion!
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Old 10-22-2005, 02:10 AM
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Quote:
Originally Posted by bigdkt
Hi! My husband was sent to a camp in June for 6 months. He has 3 children by his ex-wife with which he shares joint custody. However, his ex-wife will not let me or his parents even take them to see there daddy or even see them. However, she is mad because I quit sending her child support because she is not adhering to the court orders of the divorce decree. Is there anything I can do to either make her let the kids go see there daddy or forfeit her child support since she is not abiding by the divorce decree with visitation?


Don't punish the kids by keeping the child support, it's not their fault. You will get in trouble in doing so and in the mean time keeping it will just add more to what is owed. Does this decree stipulate visitations while he is locked up? which I doubt and would be surprised. If not you need to speak to the Judge on this and he may agree with the natural mother.

The C/O's job are to keep the inmates in line, it's not their job to slap their girlfriend on the hand and say no no no.....you can't do that. They should have more respect in knowing that there are going to be kids around. I've seen many times when I would go for visits, and the things I saw the girls do would piss me off, sometimes I would cut my visits short.
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Old 10-22-2005, 12:29 PM
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http://www.divorcesource.com/researc.../94apr66.shtml

check out part III visitation, it even says something about kentucky in there. looks like a lot of varying opinions. its kind of long, but I hope this helps
THE EFFECT OF INCARCERATION ON A DIVORCED PARENT'S RIGHTS AND OBLIGATIONS
© 1994 National Legal Research Group, Inc.

I. INTRODUCTION

While states differ in their determination of what constitutes emancipation, it is clear that this parental obligation extends until at least that point in every state. One condition which may affect that obligation is a parent's incarceration. This article will explore the effect of a parent's incarceration on divorce and postdivorce actions. Specifically, we will examine how incarceration impacts the issues of custody, visitation, and child support.

II. CUSTODY

Not surprisingly, the number of reported cases addressing the issue of child custody where a parent is incarcerated are few. This is because, as the Illinois appellate court recently made clear, a parent's incarceration is analogous to death in that the parent cannot properly care for a child while the parent is incarcerated. Naylor v. Kindred, 250 Ill. App. 3d 997, 620 N.E.2d 520 (1993). Additionally, implicit in these decisions is the idea that a parent who has committed a crime resulting in incarceration has demonstrated parental unfitness. An issue more often litigated is parental unfitness in general and its effects on custody and custody modification. Nevertheless, the courts have had a few occasions to render a decision on the effect of incarceration on a parent's right to custody.

In several appellate cases concerning an incarcerated parent's right to visitation with a child, the courts noted that custody had been an issue in the trial court, with custody in each case being awarded to the parent who was not incarcerated. See, e.g., In re Hall, 65 Ohio App. 3d 88, 582 N.E.2d 1055 (1989); Hervieux v. Hervieux, 603 A.2d 337 (R.I. 1992); Mohammed v. Cortland County Department of Social Services, 186 A.D.2d 954, 589 N.Y.S.2d 113 (1992). In these cases, the custody issue was not appealed. See also In re Eric "X", 175 A.D.2d 410, 572 N.Y.S.2d 480 (1991) (incarcerated father's motion for rescission of joint custody award to certain maternal and paternal relatives and return of child to him was properly dismissed because the father had brought the motion against the wrong party, the Department of Social Services; the lower court, however, did not err in entertaining, and denying, the father's petition for visitation with his child).

Custody was a major issue, however, in Naylor v. Kindred, 250 Ill. App. 3d 997, 620 N.E.2d 520 (1993). The father and mother began dating in 1988. In 1989, the mother told the father she was pregnant, and they began living together. Shortly thereafter, they broke up. A child was born in September 1989. In January 1990, the mother told the father that the child was his. Blood tests confirmed this, and the father was ordered to pay child support.

The mother subsequently moved to Georgia without giving the father notice of her whereabouts. She thwarted his attempts at visitation.

In December 1991, the mother was arrested for parole violation. Specifically, she had been convicted of federal welfare fraud in Illinois, was on probation, and had violated probation by moving out of state without notifying authorities. She was sentenced to two years. She left the child in her sister's custody. Eventually, the child was sent to Illinois to live with the maternal grandmother.

In February 1992, the father filed for a change of custody. At a hearing, he testified that his parents would help him to raise the child. The mother's sister and the grandmother both testified that they had a good relationship with the child. Further, the mother's attorney argued that the applicable standard where a parent seeks a change in custody within two years of the original order is serious endangerment to the child, and in this case there had been no serious endangerment.

The circuit court found that there only needed to be changed circumstances to change an award of custody. It found the mother to be legally incapacitated. Finding the father sincere, the court granted him custody.

The court of appeals affirmed. It explained that the establishment of the support obligation in March 1991 was the equivalent of a custody determination. Since the father's petition was brought within two years of that date, the serious endangerment standard was applicable. The court held, however, that where the custodial parent is incarcerated, the noncustodial parent seeking custody need not show serious endangerment. Additionally, the court rejected the mother's suggestion that she remain nominal custodian with temporary guardianship being granted to her sister or mother. The court held that allowing such an arrangement would violate the natural parent's superior right to custody of his or her child.

In reaching its decision, the court made the following analogy:

  • Upon her incarceration, [the mother] became unable to fulfill her role as [the child's] physical custodian. . . . [A]n incarcerated parent, much like a deceased parent, is no longer able to care for, supervise, provide a home, prepare food, obtain medical treatment, or be involved in the daily life of the child. In short, an incarcerated parent cannot fulfill the role of a physical custodian of the child. Although incarceration may not absolutely prevent a parent from fulfilling the role of the child's legal custodian, it does impair this ability. The parent is not readily available to give advice or console the child, or to be an example. Further, the incarcerated parent is not readily available to consent to medical treatment and decide other issues generally reserved to legal custodians.
Naylor v. Kindred, 250 Ill. App. 3d 997, 620 N.E.2d 520, 528 (1993). The court noted that in this case the child's stability would be no more disrupted than it had already been. The court did conclude, however, that in every case of incarceration a parent would not necessarily lose custody of a child. Rather, the proposed modification still must be in the child's best interests.

In Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993), the Mon tana Supreme Court similarly modified an original custody order upon a custodial parent's incarceration. In 1983, the mother gave birth. The father filed for parental rights. In 1988, the parties were awarded joint custody, with the father designated as primary custodian.

Twice in 1991, the father pleaded guilty to felonious criminal acts. He was incarcerated as of July 31, 1991. In the meantime the mother had filed for temporary custody. The parties stipulated that they would continue to have joint custody but the mother would now be the child's primary custodian and the father would owe a duty of support.

In DeNillo v. DeNillo, 369 Pa. Super. 363, 535 A.2d 200 (1987), the court modified an order of joint custody where a parent had been arrested but had elected to participate in an Accelerated Rehabilitation Disposition (ARD) program rather than go to jail. In DeNillo, the child was born in March 1982. One year later, pursuant to a separation agreement between the parties, the wife was awarded custody. In April 1983, the court ordered joint legal custody, with primary physical custody to be with the father while the mother looked for housing. In September of that year, the court ordered shared physical custody. A formal decree of divorce was entered in January 1984.

Meanwhile, the husband had been arrested on two counts of indecent exposure. In February 1984, he elected to participate in the ARD program and was given two years' probation. Successful completion of the program would result in no conviction. Thus, in April 1984 and again in December 1986, the court continued the shared physical custody arrangement.

The appellate court reversed the lower court's order. It held that criminal charges were relevant to a custody determination. The father's successful completion of the ARD program was of little consequence. Moreover, the shared custody arrangement was not working out because the parties were not communicating with one another. The mother was granted sole custody.

As mentioned, in most of the custody disputes, while incarceration is not an issue, the courts have denied a parent custody after finding him or her unfit. Significantly, in many of these cases the parent has been deemed unfit because he or she has committed one or more legal violations, even though the violation did not result in incarceration. See, e.g., In re Marriage of Harris, 499 N.W.2d 329 (Iowa Ct. App. 1993) (court erred in awarding custody to wife where she had been convicted twice for operating a vehicle while intoxicated, had been convicted of driving with a suspended license, and had also been convicted of stealing a check and of criminal mischief); Peterson v. Peterson, 224 Neb. 557, 399 N.W.2d 792 (1987) (where husband had a conviction for drunken driving as well as had beaten the wife and failed to support the wife and child, court did not err in refusing to grant husband custody of the parties' six-year-old son); Wagler v. Wagler, 593 So. 2d 602 (Fla. Dist. Ct. App. 1992) (error to grant mother custody of parties' six-year-old child where, at the time of the dissolution proceeding, she was on probation for the sale of drugs, where she had previously been on probation for passing worthless checks, and where she kept a dirty and cluttered residence); Ferencak v. Moore, 300 Pa. Super. 28, 445 A.2d 1282 (1982) (case remanded for further findings where lower court awarded custody of parties' son to paternal grandparents and daughter to mother on the condition that she live with her parents; mother had been convicted on three counts of conspiracy for the sale of drugs and was on probation); In re Marriage of Reschly, 334 N.W.2d 720 (Iowa 1983) (where mother had prayed that custody of the parties' child be granted to the maternal grandparents, and where husband had a history of law violations, including attempted sodomy, stealing, burglary, uttering of bad checks, and selling drugs as well as a history of drug abuse, a spotty employment record, and unsavory friends, lower court correctly awarded custody to the maternal grandparents); Turquit v. Turquit, 506 So. 2d 1014 (Ala. Civ. App. 1987) (proper to deny father's appeal of custody award of parties' daughter to Department of Human Resources where mother was physically and mentally unable to support herself, and where father abused drugs, provided no support for his daughter despite having the ability, and had a poor relationship with the daughter); see also Pahal v. Pahal, 606 So. 2d 1359 (La. Ct. App. 1992) (proper to award primary physical custody to husband when wife had been living with a man recently released from the Department of Corrections where he had been serving time for two felony convictions); cf. In re Garcia, 183 A.D.2d 826, 584 N.Y.S.2d 71 (1992) (proper to grant custody of child to mother rather than maternal grandparents, despite the fact that the mother had been incarcerated for one year when the child was one-year-old for killing the natural father where natural father had abused her for many years; the court found no evidence of parental unfitness or instability).

Courts have similarly modified custody decisions where the custodial parent has proven unfit. See In re Marriage of LaGrand, 495 N.W.2d 118 (Iowa Ct. App. 1992) (proper to modify custody award to grant wife custody of parties' two minor children where husband had an extensive criminal driving record for driving while intoxicated and for child endangerment, and where husband consistently refused to pay court- ordered fines); Ex parte Woodfin, 596 So. 2d 918 (Ala. 1992) (court erred in refusing wife's petition to modify a custody order where custody originally had been awarded to husband on the condition that his parents assist him in raising the parties' two minor children, where husband had three convictions for shoplifting, had spent 90 days in jail for selling drugs, and had received treatment for substance abuse, and had in fact relinquished custody to his parents); Dugan v. Dugan, 504 So. 2d 1283 (Fla. Dist. Ct. App. 1986) (where wife's live-in boyfriend committed murder, where wife illegally took a controlled substance, where wife moved five times in a nine-month period, lower court erred in refusing husband's petition to modify a custody award of primary physical custody to the mother).

Where a parent is incarcerated, the courts uniformly deny that parent custody of a child. They base their decisions on the fact that the incarcerated parent is not able to care for and provide for the child. Underlying these decisions is the notion that a parent who has committed a crime deserving of incarceration has proven himself or herself unfit. Similarly, where a parent is not incarcerated but has a history of legal violations, the courts are nevertheless reluctant to grant custody to the parent with the criminal history due to that parent's unfitness.

III. VISITATION

Courts uniformly will deny a parent custody of a child or will modify an award of custody where the parent has committed a serious legal violation, especially where the violation has resulted in incarceration. Such a parent is unavailable to the child. Additionally, the parent has proven himself or herself unfit for the major responsibility of raising and caring for a child. Where the issue is visitation, however, the courts are split over whether to deny a parent visitation with a child merely because the parent is incarcerated. Some courts will allow visitation, finding continued contact with the incarcerated parent to be in the child's best interests. Courts have also held that denying visitation where a parent is incarcerated is a violation of a parent's fundamental rights. Finally, even where courts have found that an incarcerated parent is unfit to serve as a child's custodian, the courts have not found the parent unfit to the point that he or she should be denied visitation rights with a child. Conversely, courts that have denied an incarcerated parent visitation usually cite unfitness as the reason for their decision.

Perhaps the leading case standing for the proposition that parental incarceration should not result in a loss of visitation rights is M____L____B____ v. W____R____B_____, 457 S.W.2d 465 (Mo. Ct. App. 1975). In that case, the wife was granted a divorce and custody of the parties' two children. The husband was denied visitation rights He had been convicted of bank robbery in June 1968, during the parties' marriage, for which he had been sentenced to 14 years in jail.

The Missouri appellate court reversed. In reaching its decision it distinguished between civil rights and natural rights:
  • The effect of the father's sentence to imprisonment for a term less than life was to suspend all of his civil rights during such term. V.A.M.S. 222.010. But civil rights are to be distinguished from natural rights, which "are such as appertain originally and essentially to man such as are inherent in his nature, and which he enjoys as a man, independent of any particular act on his side." 14 C.J.S. Civil Rights 2, p. 1160. See In re Gogabashvele's Estate, 195 Cal. App. 2d 503, 16 Cal. Rptr. 77, 91(9); Borden v. State, 11 Ark. 519, 527. A parent's right of access to or visitation with his minor children is a natural right, sometimes regarded as sacred [Block v. Block, 15 Wis. 2d 291, 112 N.W.2d 923, 927] and always respected as exceedingly important. Radford v. Matczuk, 223 Md. 483, 164 A.2d 904, 907, 88 A.L.R.2d 140, 144; Paine v. Paine, D.C. App. 201 A.2d 20, 22; 2 Nelson, Divorce and Annulment (2nd Ed.), 15.26, pp. 274-275.
M____L____B____ v. W____R____B_____, 457 S.W.2d 465, 466 (Mo. Ct. App. 1975) (emphasis in original; footnote omitted). The court held that where neither parent is unfit, the child's best interests are served by enabling association with both parents. Even though the parent is a guilty party who should be deprived of his civil rights, he is not unfit to be denied the natural right of visitation. Moreover, the court said that the father should not be denied visitation merely because the mother does not want the children visiting prison.

An Indiana appellate court expressed similar reasoning in McCurdy v. McCurdy, 173 Ind. App. 437, 363 N.E.2d 1298 (1977). In McCurdy, the wife filed for divorce in April 1975, while the husband was in the county jail awaiting trial for kidnapping and rape. She was granted a divorce in June of that year. The court awarded her custody of the parties' two minor children. It also awarded the husband reasonable visitation rights. The husband was subsequently sentenced to a term in state prison for his crimes. The wife refused to allow the children to visit with their father. She told the children that their father was in the hospital. She told the court that she feared the emotional trauma of exposing the children to the prison atmosphere.

The husband petitioned the court to modify the divorce decree to compel visitation on a regular basis. The court denied his petition. The court of appeals reversed. It explained that the number one concern in cases of custody and visitation is the child's best interests. Still, it said that children need the affection and companionship of their parents insofar as possible, and that both parents were entitled to share in the affection and companionship of their children. Visitation, thus, could be of mutual benefit to the parent and children. Accordingly, the lower court erred in refusing the husband's petition.

In Hervieux v. Hervieux, 603 A.2d 337 (R.I. 1992), an action for divorce, the court awarded the wife custody of the parties' children and denied the husband visitation rights. At the time, the husband was serving a 15-year sentence in the Adult Correctional Institute. The court denied visitation even though the wife said that she did not mind bringing the children to the jail one time a week. The court said that the issue of visitation was subject to modification upon the husband's release.

The supreme court reversed. Evidence showed a normal and loving relationship between the father and children. Besides the incarceration, the court saw nothing that justified a refusal to order visitation.

Most recently, a Kentucky appellate court granted an incarcerated father visitation rights in Smith v. Smith, 20 Fam. L. Rep. (BNA) 1192 (Ky. Ct. App. 1994). There, a divorced father serving a life sentence for murder, robbery, and kidnapping sought visitation with his 13-year-old daughter. The trial court denied his request. The appellate court reversed. It held that there was a presumption that visitation between a parent and child was in the child's best interests. The burden of proof to deny visitation was on the party seeking to block such a right. "[R]egardless of the heinous nature of the father's crimes, his imprisonment alone does not render visitation with his daughter inappropriate." Id. at 1192. The court remanded the case to establish a reasonable visitation schedule. See also Chadwick v. Chadwick, 275 Mich. 226, 266 N.W.2d 331 (1936) (court held that visitation is appropriate, and reversed a lower court decision that provided for visitation only at such times and places agreeable with the mother; the court said that this order left too much to the whims of the mother, and it ordered visitation on the first Sunday of each month).

There is equal support, however, for the proposition that a parent who is incarcerated should be denied visitation rights. In In re Hall, 65 Ohio App. 3d 88, 582 N.E.2d 1055 (1989), for example, the maternal grandmother was awarded custody, without the mother's objection, where a father was imprisoned. The trial court awarded the father visitation rights and ordered the grandmother to transport the child to prison one time per month. It said that a natural parent should be denied visitation with a child only for extraordinary circumstances.

The appellate court reversed. It agreed that a natural parent should be denied such rights only for extraordinary reasons. It held, however, that extraordinary circumstances included: (1) unfitness of the noncustodial parent; (2) the possibility that the child might be harmed by the visitation; and (3) a parent's incarceration for a violent crime. Once an extraordinary circumstance has been established, the parent denied visitation has the burden of proving that visitation would be beneficial and in the child's best interests. In this case, where there was an extraordinary circumstance, the trial court erred in placing the burden on the custodian to show that visitation would not be in the child's best interests. The court also held that transporting a young child to a prison on a regular basis likely would have a harmful effect on the child.

In Mohammed v. Cortland County Department of Social Services, 186 A.D.2d 954, 589 N.Y.S.2d 113 (1992), the husband shot his estranged wife's paramour in front of the wife and child. He was convicted of attempted murder and incarcerated. The wife later married her paramour, left the United States, and left the parties' child in the custody of her brother. In 1989, the wife transferred custody of the child to the Department of Social Services. He was placed in a foster home. In February 1990, the husband petitioned for visitation rights. The trial court denied his request, finding such not to be in the child's best interests.

On appeal, the decision was affirmed. The appellate court noted that incarceration alone does not make visitation inappropriate. In this case, however, visitation would not be in the child's best interests. The foster care placement benefited the child. Reintroduction to the father was likely to traumatize the child. The court, nevertheless, was sympathetic to the husband's plight. It emphasized that his paternal rights had not been severed. He could later petition for modification if circumstances changed.

Especially in cases where a parent has been charged with the murder of the other spouse do courts deny visitation to the incarcerated parent. Caesar A.R. v. Raquel D., 179 A.D.2d 574, 578 N.Y.S.2d 831 (1992), presents an example. There, the husband had been in prison since 1984. His three children visited him until 1987. At that time he was convicted of murdering the children's mother and of raping his stepsister. The children feared him and did not wish to visit. Moreover, they were doing well in the custody of their maternal grandmother. The trial court denied visitation, and the appellate court affirmed.

Similarly, in In re Eric "X", 175 A.D.2d 410, 572 N.Y.S.2d 480 (1991), joint custody of a child was awarded to a maternal aunt and uncle and to certain paternal relatives, with the aunt and uncle having primary physical custody. In October 1989, the father sought visitation. His request was denied. He had been charged with the deaths of the child's mother and a social worker. He was convicted of the latter felony and was serving a 25-year sentence. The court held that visitation would not be in the child's best interests.

At least one court, while denying the incarcerated parent visitation, has allowed him to call his children. In Scott C. v. Marietta C., 156 Misc. 2d 336, 593 N.Y.S.2d 139 (Fam. Ct. 1992), the father of two children was incarcerated for second-degree burglary and possession of stolen property in January 1990. He was serving a four- to eight-year sentence. At first, the mother brought the children to visit with him. She refused to continue after having an argument with the father.

At a hearing the mother testified that the visitation room at the prison was crowded and that there was sexual contact between prisoners and visitors. She further testified that she would have no objection to visitation upon the father's release. She also ex pressed a willingness to take the children to an aunt's house, where the father could place a call, and she would also allow the exchange of letters.

The court denied the father visitation, finding it not to be in the children's best interests. The court did agree to allow communication by mail and phone, on a weekly basis. It said the children in fact should spend an hour or so at the aunt's house each week so that she could help them draft letters to the father.

While courts routinely deny an incarcerated parent custodial rights, they are split on whether or not an incarcerated parent should be denied visitation. Some courts encourage the visitation, holding that continued meaningful contact between the parent and child can be beneficial to both parties. Especially where the father has not been convicted of a major felony, courts are willing to take this route. Conversely, where a parent has committed a major felony, especially the murder of the other parent, the courts are hesitant to allow visitation. Often they fear that the child might be harmed by such visitation. Additionally, some courts deny visitation, fearing that exposure to the prison atmosphere will not be in the child's best interests.


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IV. CHILD SUPPORT

Perhaps the issue most heavily litigated in the arena of parental incarceration and its effects on a parent's rights and obligations is the issue of whether an obligor parent who is incarcerated has a continuing duty to provide child support during the period of incarceration. Most courts have held that this obligation does continue, finding that the parent has other assets by which his obligation can be satisfied. A few courts, however, have suspended the obligation for the period of incarceration unless the parent has been imprisoned specifically for nonsupport. They reason that if the parent was not intentionally trying to shirk his responsibility, he should not be held to the obligation when he has suffered a drop in income.

The leading case standing for the proposition that support payments ordinarily should be suspended during the period of incarceration is In re Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4 (1981). In that case a final decree of divorce was entered in December 1978. The husband was incarcerated at that time and was up for parole on February 15, 1979. The divorce decree provided that the husband was to begin paying child support of $75 per month beginning March 1, 1979.

During the summer of 1979, the father made one payment. He was arrested in August 1979 for a crime committed the previous month. In November 1979, he was sentenced to 10 years' imprisonment after being convicted of theft and burglary. The husband had no income and had not been able to pay.

In August 1980, the husband filed for modification of the divorce decree. He sought suspension of his obligation until 60 days after his release. The mother, meanwhile, was receiving public assistance. At a hearing held in February 1981, the trial court denied his request. The appellate court reversed.
  • Where a noncustodial parent is imprisoned for a crime other than nonsupport (or for civil contempt for failure to pay the same) we believe that the better rule should be that the parent is not liable for such payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments. See Tice v. Tice, 207 Or. 247, 295 P.2d 866 (1956), where the court observed "* * * no court is justified in ordering a man to do the impossible." See generally 24 Am. Jur. 2d, Divorce and Separation 964 (1966). Imprisonment and resulting indigency constitute a significant change of circumstances such as to permit a court to modify a support obligation.
In re Marriage of Edmonds, 53 Or. App. 539, 633 P.2d 4, 5 (1981). The court rejected the state's argument that the clean hands doctrine barred the husband's requested relief. It said that there must be evidence that the husband became imprisoned to avoid his obligation to justify a continuation of the obligation.

Interestingly, Edmonds was overruled by In re Marriage of Willis, 109 Or. App. 584, 820 P.2d 858 (1991), which was itself reversed by the Oregon Supreme Court, 314 Or. 566, 840 P.2d 697 (1992). In Willis, a trial court had suspended the father's child support obligation until 60 days after his release from prison after he was sentenced for possession of a controlled substance, noting that he had insufficient income and assets to meet his obligation. In fact, he testified that shortly before his arrest $14,000 in property had been stolen from him and that he was indigent. The property was never recovered. The appeals court did not buy his argument:
  • Criminal conduct of any nature cannot excuse the obligation to pay support. We see no reason to offer criminals a reprieve from their child support obligations when we would not do the same for an obligor who voluntarily walks away from his job. Unlike the obligor who is unemployed or faced with a reduction in pay through no fault of his own, the incarcerated person has control over his actions and should be held to the consequences. Under Edmonds, a man who had committed a crime against his children and was sent off to prison would be relieved of his support obligation. Such inequitable results must be avoided.
820 P.2d at 860. The court, nevertheless, held that the incarcerated obligor could not be held in contempt if he was truly indigent and without means. During the period of Incarceration if he lacked funds to satisfy the obligation, his ar rearages would accrue.

The supreme court reversed, holding that the Edmonds rationale was more appropriate in the case of an incarcerated obligor. It said that if the criminal action was not taken for the primary purpose of avoiding the support obligation, the incarceration alone should not defeat a request for modification. On the other hand, neither did incarceration alone mean that an obligor was unable to meet the obligation. For example, he might have substantial assets or a reasonable opportunity to acquire such, he might be entitled to retirement benefits, or the period of incarceration might be short. A court should therefore consider each petition for modification of a support obligation on a case-by-case basis. In Willis, the father had no income and the majority of his assets had been stolen. Therefore, his support obligation was suspended.

Other courts have followed Oregon in holding that an incarcerated parent's child support obligation should be suspended during the period of incarceration unless the parent sought incarceration as a means to avoid the support obligation or unless it is affirmatively shown that he has assets by which he can continue to satisfy the obligation. For example, in Leasure v. Leasure, 378 Pa. Super. 613, 549 A.2d 225 (1988), the Pennsylvania court adopted such reasoning. In Leasure, the father was ordered to pay $16.70 per week for the support of the parties' minor child. He was sentenced for a one- to two-year period for crimes unconnected to the support obligation. The trial court found his incarceration voluntary and refused to suspend the obligation.

The appellate court reversed. The court held that the father had not sought a voluntary decrease in income, so income should not be imputed to him. It further said that it was unlikely he was trying to avoid the obligation by going to prison: "Incarceration is usually an involuntary situation." Leasure v. Leasure, 378 Pa. Super. 613, 549 A.2d 225, 227 (1988). Imposing on a parent a continuing support obligation beyond his ability to pay would not help the child and would add another burden to a parent when he least can bear it. In this case the father did not have assets by which he could satisfy the obligation. Thus, the trial court should have temporarily suspended the obligation. The appellate court ordered the trial court to review the support order when the father was released and able to secure a job. At that time, the trial court could take into account that the child was forced to do without the child support for the time the father was incarcerated.

In Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867 (1984), when the parties were divorced the husband was earning $6.50 per hour. Prior to issuance of the divorce decree, the husband was convicted of first- degree manslaughter and sentenced for a period of five to 15 years. In prison he was earning 60 cents per day. Meanwhile, the divorce court, unaware of the sentence, awarded the wife a divorce and ordered the husband to pay $200 a week in child support.

The husband moved the court for modification. He sought to decrease his obligation to zero dollars until his release. In his affidavit, he said that he owned no assets other than one-half of the marital residence, subject to a mortgage. The residence was in the wife's possession and she did not intend to sell it.

The Special Term reduced the support obligation by one-half, noting that the husband had one-half an interest in the marital residence. The appellate division reversed. It suspended the obligation nunc pro tunc, from the date of incarceration, during the entire period of incarceration. The court held that the husband was not deliberately holding down his earning capacity, and should neither be unduly burdened nor found in default since his failure to pay was not willful. For other cases holding that during the period of incarceration a parent's child support obligation should be suspended unless the incarceration was due to nonsupport or unless the parent committed a crime to avoid the obligation and unless the parent has assets or other means by which to satisfy the obligation, see Clemans v. Collins, 679 P.2d 1041 (Alaska 1984); Commissioner of Human Resources v. Bridgeforth, 42 Conn. Supp. 126, 604 A.2d 836 (Super. Ct. 1992); Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988); Illinois ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 568 N.E.2d 436 (1991); Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291 (1987); Johnson v. O'Neill, 461 N.W.2d 507 (Minn. Ct. App. 1990); Kuronen v. Kuronen, 499 N.W.2d 51 (Minn. Ct. App. 1993); Peters v. Peters, 69 Ohio App. 3d 275, 590 N.E.2d 777 (1990).

Where the parent has other assets, the courts usually will not modify the support obligation. Hebert v. Hebert, 475 A.2d 422 (Me. 1984), provides an example. The parties in Hebert were married in 1963. They bore five children before separating in December 1980. The separation was prompted by the husband's sexual assault of the parties' 16-year-old daughter. The husband was convicted of gross sexual misconduct and sentenced to jail.

In August 1982, a decree of divorce was entered. It was amended in November 1982 to grant custody of the parties' children to the wife. The following month, the order was once again amended; this time to divide the parties' property and to order the husband to pay child support of $200 per week.

The husband contended that he should not be obligated to pay such child support while incarcerated. The appellate court found no error. The husband had been awarded $40,000 in cash and other assets as part of the equitable distribution of property. He could satisfy the support obligation with those assets.

In In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983), the parties were divorced in 1983. The husband was grossing $415 per week at this time. He was ordered to pay $40 per week in support for each of the parties' two children until each became emancipated. He was granted a 50% equity in the parties' marital residence.

In February 1981, the husband was arrested for firing a gun through the wife's residence while the wife and children were at home. He was sentenced for up to five years for this act of terrorism. The father earned $40 per month in prison.

The husband moved for modification of his support obligation. The trial court refused. It noted that his 50% equity in the home was worth $15,000. His support obligation could be charged against this equity during the incarceration.

The supreme court affirmed. It explained there were certain factors that must be met before an order for child support could be modified: (1) a substantial and material change in financial circumstances occurring since entry of the divorce decree, which was not contemplated; (2) a permanent or continuous change in the financial situation; and (3) evidence that continued enforcement of the original order would result in an injustice. Not every change in circumstances was sufficient to justify modification, the court noted. Such was the case here. The court also emphasized that the critical issue was the care and feeding of the children. It would not be inequitable for the equity in the home to be charged. Conversely, it would be inequitable to force others to support the children while the husband was incarcerated.

In Proctor v. Proctor, 773 P.2d 1389 (Utah Ct. App. 1989), the parties were married in 1971. They bore four children. The parties each earned approximately $1,200 per month at their respective jobs.

In October 1986, the husband was convicted of raping a child. He was sentenced to a minimum of five years in prison. In January 1987, the wife filed for divorce. Pursuant to the divorce decree, entered in December 1987, the wife was awarded the marital residence and household furnishings. The husband was awarded a lien for one-half of the equity in the home. The husband was also ordered to pay $348 per month child support. For each month he was not able to meet that obligation, his equity in the home was to be charged. The husband appealed, contending that any support obligation during the period of incarceration should be nominal.

The appellate court affirmed the trial court's decision. It held that it was not inequitable to charge the husband's equity in the home with the support obligation where his own criminal misconduct resulted in his incarceration. Further, it noted that he had earned $1200 per month prior to incarceration and there was no reason not to impute income where he had such earning potential. See also Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983) (where husband was fired from his job, at which he was earning $23,000 annually, for stealing trade secrets, and subsequently forced to take a job paying $5 per hour, it was error to reduce his child support obligation; arrearages could be deducted from husband's share of proceeds when marital home was sold).

Some courts have refused to modify a child support obligation at the request of an incarcerated parent, no matter whether he has other assets to satisfy the obligation or not. In Koch v. Williams, 456 N.W.2d 299 (N.D. 1990), for example, the husband was obligated upon the parties' divorce to pay $200 per month for the support of his minor daughter until she turned 18 or graduated from high school. The husband was subsequently sentenced for five years, with two years suspended, for committing incest. He moved to terminate the support obligation the day after he began serving the sentence. The trial court terminated payments during the incarceration. They were to be reinstated 60 days after his release.

The appellate court reversed. It held that this was a case of a self-induced change of circumstances and was not a valid grounds for modification. Where a change in circumstances is voluntary or self-induced, no modification is warranted because the obligor is without clean hands. The court rejected the husband's contention that it was the sentencing that placed him in the position of being unable to support his daughter and that continued enforcement of the support obligation constituted double punishment. The court acknowledged that the husband was presently unable to meet the obligation. It said, however, that support arrearages would continue to collect. It did leave open the possibility for adjusting payment of the arrearages as the husband's financial circumstances upon release required. In sum, the court held that the strong public policy of protecting a child's best interests was promoted by holding that a felon incarcerated for incest was not excused from a child support oblig ation.

Other courts have rejected the argument that it is the state's fault that the incarcerated parent is unable to meet his support obligation. In Louisiana v. Nelson, 587 So. 2d 176 (La. Ct. App. 1991), the husband was ordered to pay $10 per month to support two children, beginning in August 1989. From the outset the husband did not comply. In October 1990, the obligation was increased to $20 biweekly, and the husband was ordered to pay $5 biweekly in arrearages. Again, the husband failed to comply. The state filed a show cause action against him, and he failed to appear for a hearing. The court ordered his arrest, but the husband was already incarcerated, having committed battery on a police officer.

At the trial for battery, the husband pleaded guilty and was sentenced to two years of hard labor. That sentence was suspended, and he was placed on active probation for two years. The juvenile court, nevertheless, annulled the payments due from the date of incarceration until the husband's release.

The appellate court reversed. It rejected the husband's argument that he was placed in the situation of being unable to support his children by the incarceration and that he had experienced a change in circumstances justifying annulment of payments. The court held that a parent's duty of support is a primary and ongoing obligation, only excusable for fortuitous events. The commission of a crime is not such an event, since the result, possible conviction and incarceration, is foreseeable. Moreover, the court said that being jailed does not necessarily mean that the husband would be unable to meet his obligation. The support obligation could be satisfied after his release. The court said that if this was not the rule, the result could be the release of many support obligations.
  • The hostility which frequently develops in domestic support cases could conceivably create an incentive from the obligor parent to go to jail rather than pay child support if his support obligations were subject to extinguishment during the period of his incarceration and the defendant knew he could avoid the obligation by going to jail. The rule articulated in this case eliminates that motivation because the defendant has nothing to gain from going to jail. Thus, the rule minimizes the likelihood of noncompliance with a child support order in hopes of avoiding the obligation altogether.
Louisiana v. Nelson, 587 So. 2d 176, 178 (La. Ct. App. 1991).

Another reason for refusing to extinguish the obligation cited by the Koch court, the unclean hands doctrine, was cited by the Nebraska Supreme Court in Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985). There, the husband moved to modify a child support order, alleging a material change in circumstances. He had been sentenced to imprisonment for 15 years. Additionally, he was totally devoid of funds or liquid assets and he was unemployed. The trial court dismissed his petition.

The supreme court affirmed. It noted that incarceration was a definite change of circumstances from one condition to another but not such a change that warranted a temporary termination of a child support obligation. The court explained that where one seeks relief from a support obligation on the basis of incarceration, the violation of the criminal statute is directly related to the matter of child support, and equity should not provide relief. Moreover, incarceration is a foreseeable result of criminal activity, and thus the obligor's position of not being able to pay is self-induced. Finally, the best interests of the children would not be served by temporary termination of the obligation.

In Cole v. Cole, 70 Ohio App. 3d 188, 590 N.E.2d 862 (1990), the court rejected the incarcerated parent's novel argument that his civil rights were being violated by continued imposition of a support obligation during the period of incarceration. In Cole, the parties were divorced in August 1989. The wife was awarded custody of the parties' two minor children. The husband was earning $19,000 per year and thus was ordered to pay $88 plus poundage weekly as child support.

Subsequently, the father was incarcerated. In January 1990 he filed for temporary suspension of the child support obligation, retroactive to the sentencing date of September 1, 1989. The trial court denied him relief.

The appellate court affirmed. As did other courts, it rejected the argument that this was a change in circumstances warranting modification since the inability to pay was the result of a voluntary act. Additionally, it rejected the husband's contention that failure to suspend the obligation was a violation of the eighth amendment. The court said there was no cruel and unusual punishment here. The support obligation was not a fine. Moreover, it would be inequitable for the obligation to be discharged by society where the obligor had engaged in crimes and would otherwise be capable of fulfilling the obligation. The court also rejected the husband's contention that failure to suspend the payments was a violation of his fourteenth amendment rights. There was no discrimination in allowing arrearages to accrue. There was no more discrimination in this case than in one where arrearages are imposed on the parent who is unable to meet his support obligation due to underemployment. Additionally, no fundamental right was affected, no suspect class was created, and the child support obligation was rationally related to the state's legitimate interest in seeing to it that children are provided for. The court saw no civil rights violation in rejecting the husband's petition.

More recently, in Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993), the Montana Supreme Court rejected the incarcerated parent's allegation that the child support obligation imposed on him was unconscionable due to his incarceration. There, in 1983, the mother gave birth. The father filed for parental rights in 1984. In 1988 the parties were awarded joint custody, with the father being granted primary physical custody. In both February and March 1991, the father pleaded guilty to felonious criminal acts. He was to be incarcerated beginning in July. The mother filed for temporary custody, and the father stipulated to continued joint custody, with primary physical custody placed in the mother. In May 1991, the mother filed for child support, and the father was ordered to pay $500 per month for the months of April through July, based on his preincarceration income. He was ordered to pay $50 per month for the period of incarceration, beginning in July and thereafter, subject to modification upon his release and resumption of work.

The husband moved for modification of the support order, contending that he was unable to pay during the period of incarceration. The trial court granted modification, but the supreme court reversed. It held that voluntary commission of a criminal offense and the subsequent incarceration do not make an existing support order unconscionable so that a father has grounds for reduction or suspension. The court agreed that the father had experienced a change of circumstances, but that it was not unconscionable to continue enforcement of his support obligation.

The Mooney holding was followed by the Montana Supreme Court in In re Marriage of Olsen, 257 Mont. 208, 848 P.2d 1026 (1993). There, the parties separated in 1990 following a 15-year marriage. At the time of separation, the husband was ordered to pay $401 per month in child support. The separation was prompted by the husband's arrest for sexually assaulting their daughter. He was sentenced to 16 years, with six years suspended.

During the marriage, the husband had worked as a truck driver. The parties had a home with an equity value of $63,500. They had $44, 000 in cash and savings.

In December 1991, the court issued a dissolution decree containing a property distribution and addressing the husband's support obigations as well as other obligations such as health insurance coverage and medical expenses. The court split the marital property equally, but the wife was given a larger cash award, which included the husband's child support and other obligations. The husband appealed the award.

The supreme court affirmed the distribution. It held that a criminal should not be given a reprieve from his obligations. Moreover, public policy mandates that children be provided for. Thus, the court held that it was no error for the lower court to issue the wife a cash award, including the husband's child support obligation based on his preincarceration income. For other cases holding that an incarcerated parent's child support obligation should not be suspended during the period of incarceration, see Davis v. Vance, 574 N.E.2d 330 (Ind. Ct. App. 1991); In re Phillips, 493 N.W.2d 872 (Iowa Ct. App. 1992) (court, however, may consider wife's increased earnings since divorce in adjusting husband's support obligation); Parker v. Parker, 152 Wis. 2d 1, 447 N.W.2d 64 (Ct. App. 1989).

Even though a court refuses to suspend the obligation, the court may suggest that the lower court be flexible when determining how an obligor might satisfy any arrearages that have accumulated during the period of incarceration. These decisions emphasize that it may take a while for the obligor to resume work or to earn pay at his preincarceration level. See, e.g., Davis v. Vance, 574 N.E.2d 330 (Ind. Ct. App. 1991); Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993); Koch v Williams, 456 N.W.2d 299 (N.D. 1990).

Some courts, while refusing to terminate the support obligation during incarceration, have lowered it. For example, in In re Marriage of Voecks, 171 Wis. 2d 184, 491 N.W.2d 107 (Ct. App. 1992), the parties were divorced in 1985. The wife was granted custody of their daughter, and the husband was ordered to pay $55 per week in child support. Additionally, his $6,000 equity inter est in the parties' marital home was to be an additional award of child support, to be paid when the house was sold. At the time of the divorce, the husband was earning $21,000 per year as a furniture store owner. Later, he sold that business and bought an excavating business.

In August 1988, he was placed under bond for being a party to cocaine delivery. He sold his excavating business at that time. In September 1989, he was sentenced to seven years' imprisonment for again being a party to cocaine delivery. Parole was set for April 1996. At the time of his sentencing, the husband was $6,000 in debt, he had no assets, and he had no income.

The wife, meanwhile, remarried. She earned $6, 000 per year, and her husband was earning a substantial amount as an engineer. The marital residence was sold, and the $6,000 was placed in trust for the daughter.

In September 1991, the husband requested a stay of his support obligation and $9,760 in arrearages already accrued until release. He was earning $65 per month in prison. The trial court reduced his obligation to $25 per month, based on changed circumstances.

The appellate court affirmed. It held that this was not a case where a parent was shirking his or her support obligation. Those cases involve deliberate action to reduce income to avoid the support obligation. While criminal conduct is deliberate, it is not engaged in to reduce the obligation. Additionally, the trial court was correct to consider the incarceration and reduced income as a change in circumstances warranting modification as well as to consider the wife's increased income.

In Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993), the parties divorced in 1987 after a 19-year marriage. The husband was ordered to pay $110 per month for each of the parties' five children. As of December 1991, he was $19,000 in arrears. This may have been in part due to his shooting his wife, for which he had been incarcerated and was serving a life sentence for attempted murder.

The husband petitioned for temporary modification of his support obligation. He earned a small income in prison, $60 to $80 per month, which he said he needed to meet his own personal expenses. He also earned $36 per month in military disability pay and received monetary gifts from friends on a regular basis.

At a hearing held in December 1991, the court reduced his obligation to $100 per month, beginning in January 1992. The husband appealed.

The supreme court affirmed the modification. It noted that the obligation had been reduced substantially. Moreover, the obligation, as modified, represented a significant deviation from the amount the husband would be obligated to pay under the child support guidelines. The court further rejected the husband's allegation that this obligation was a subterfuge for awarding the wife a second judgment for his tortious conduct in shooting her. The court emphasized that the support obligation was for the benefit of the parties' children, not the wife.

In summary, some courts suspend the support obligation during the period of incarceration, holding that it is unfair to hold an incarcerated parent to such a burden when he does not have the financial means to satisfy the obligation. Other courts refuse to suspend the obligation, especially where the incarcerated parent has other assets which he can use to meet his obligation. Some courts are willing to reduce the obligation, but will not totally suspend it. Most recently, the Missouri courts have combined these theories. In Oberg v. Oberg, 20 Fam. L. Rep. (BNA) 1116 (Mo. Ct. App. 1993), an appeals court held that the issue of whether an incarcerated parent should be excused from a support obligation should be judged on a case-by-case basis, depending on the circumstances of the particular case. In Oberg, the husband appealed an order denying his petition to reduce his child support obligation due to his incarceration. The appeals court affirmed the lower court's holding. Yet, it limited its refusal to suspend the obligation to the particular case, refusing to hold that in every case where an obligor parent has been incarcerated would it fail to suspend the support obligation.

The Missouri court explained that in some cases the incarcerated parent may not have the financial resources to fulfill the obligation, either while incarcerated or in the future. The court provided a list of factors that a trial court should use to determine if a parent would have the ability to fulfill the support obligation. A court should look at: (1) the length of incarceration anticipated; (2) the earning potential of the incarcerated parent following release; (3) the amount of the support obligation; and (4) the amount of arrearages that might have accumulated by the time of release. Upon release, the court must schedule any arrearage payments based on postincarceration income.

Applying those factors to the Oberg case, the court found that the husband currently had insufficient assets to pay the award. Yet, he anticipated release in two years. Further, his obligation was only $25 per week for each of two children. At the job he held prior to incarceration, he was earning $3,000 per month. The court said that this suggested the husband would have sufficient potential to earn that much upon release, even if not immediately. Finally, assuming he made no payments while incarcerated, some $5,200 in arrearages would accumulate. The court thus held that the husband would be able to fulfill his obligation and thus refused to suspend it.

The courts are split on whether an incarcerated parent has a continuing duty to meet a child support obligation during the period of incarceration. Some courts will not suspend the obligation holding that the obligor has other resources by which he can meet his obligation or that he can satisfy his obligation by paying arrearages upon his release. With regard to payment of arrearages, most courts do suggest flexibility in allowing an obligor to meet his obligation as his financial circumstances allow. Some courts lower the obligation, citing the reality of the incarcerated parent's financial circumstances. Recently, a Missouri appellate court refused to lay down a black or white rule, holding instead that each case should be judged separately, depending upon the facts.

V. CONCLUSION

The issue of an incarcerated parent's rights and obligations has, unfortunately, provided the courts with substantial opportunities for litigation. In this age of increasing crime and increasing divorce, the issues are likely to continue appearing on the dockets. An observer's initial reaction might be that the incarcerated parent deserves no rights: neither custody of a child nor the right of visitation. Further, an observer might find the suggestion that a suspension of the support obligation during the period of incarceration would be allowing the obligor to commit another crime in a sense, shirking a support obligation, by commission of a crime that lands him in prison in the first place.

Initial reactions, however, do not always end up as sound approaches. For example, some otherwise fit parents are driven to commit crimes in order to help support a family. Should these parents be denied custody and visitation rights? Further, public policy encourages continued contact between a parent and child upon divorce. Should both the parent and child be deprived of this right in every case? Finally, some incarcerated parents realistically will never be able to meet the support obligation. Should a court continue to insist on the impossible, the eventual satisfying of the obligation, when a child is in the meantime being deprived of financial support? The better answer would seem to be that courts must decide the issues of an incarcerated parent's rights and obligations on a case-by-case basis, as the Missouri Court of Appeals recently decided in Oberg.
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Old 10-23-2005, 08:23 AM
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My loved one is in a New Jersey prison, he has court ordered visits with his children. When his x wife went for the divorce and the papers were sent to him, he asked for visits with the children. She now has to bring the children to the prison 1x a month. The divorce took place in NYC.

Molestors are eyeballing our children in the street, stores, schools. Atleast in prison visits nothing can happen.
It's morally wrong for you to keep your children away from their father, in the end it will be you that they hate for keeping them away from their father. He is in prison, its a fact of life, they will adjust.
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Old 10-23-2005, 08:30 AM
riri riri is offline
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Child support payments have to be ajusted by the court, the father can t pay the support if he is not working and in prison. I would stop sending the payment, let her take you to court. The court will order the payments be made lower. The court will give her whatever he makes while in prison. In my loved ones case it's $33 a month and he gets visits from the children.
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Old 10-23-2005, 09:03 AM
poni'swoman poni'swoman is offline
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I'm thinking she's probably trying to shield the kids from hurt and possibly embarrassment. Having your Dad in prison is not something to be proud of. If he is only going to be gone for six months I agree with her. She could tell them Daddy is working out of town or whatever. If she has been meeting the conditions of the court up until now then I'm sure that's the reasoning. Can't you talk to her? Why subject children to that kind of environment if he will be home by the end of the year?
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Old 11-13-2005, 01:55 PM
nichol21 nichol21 is offline
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Quote:
Originally Posted by poni'swoman
I'm thinking she's probably trying to shield the kids from hurt and possibly embarrassment. Having your Dad in prison is not something to be proud of. If he is only going to be gone for six months I agree with her. She could tell them Daddy is working out of town or whatever. If she has been meeting the conditions of the court up until now then I'm sure that's the reasoning. Can't you talk to her? Why subject children to that kind of environment if he will be home by the end of the year?
I understand that everyone has their own opinion on this and it's prolly a really touchy subject. Here I go again with my opinion. I think shielding you children from this enviroment, even if the time away is 1 month, is a bunch of crap. Regardless of what the parent locked up did...unless harming the children or the wife/ex...they should be alowed to see their kids. Prison/Jail is reality regardless of who is placed there, weather it be your mom dad aunt uncle son brother sister. As for it being embarrassing, their friends don't have to know that they are going to visit their dad/mom in prison. I mean let's get real here, if the kids' friends would make fun of them for that anyway, the children should prolly be picking new friends. I am 21 years old and my father has been in and out of prison my whole life, I was honestly not once ever emabarrassed. Why would I be? My step-dad has been in federal prison for the last 8 years, well 8 as of DECEMBER 24 of this year. I have never been embarrassed by him either. He is in fact the most intelligent man I have even spoken to in my whole life. He, as most people do, made one mistake, but he on the other hand got caught unlike most. Anyway the point of this is why should the mom/dad make their children feel like their their other parent is an embarrassment? And why would a parent lie straight to their children's face? Isn't it most parents number 1 priority to teach their children not to lie and that lying is wrong? What kind of example is that teaching the kids? It's okay to lie as long as it's about your parents? I mean hello....no sence.
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Old 12-06-2005, 12:43 PM
litilady litilady is offline
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in utah when the person paying the child support, in this case the father, goes to prison or jail the child support can be reduced to $20 a month for the length of time that he is incarcerated. this has to be done at the ors office or at the courts, you must take documented papers saying that he is incarcerated. you should not pay his child support that is NOT your obligation. however i don't know the proceedings in your state. also while he is incarcerated he is not obligated to pay that. payments are due thirty days after he is released. however the sad thing is the parent who has custody has the right to take or not take the kids to see him. it is almost like his custody is temporarily forfeited while he is incarcerated. which is where the kids lose.
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Old 06-29-2006, 12:26 AM
LoveMyPap1 LoveMyPap1 is offline
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As a mother, I doubt I would bring my children to a prison to see their father. They would be able to send letters, and recieve phone calls.
You have to keep in mind, there are reasons people get divorced.
I'd keep the kids in mind, here. Have your man write to them & let them know he loves them & will make it up to them...
Respect her as their mother. If she feels uneasy about it, I would drop it. You aren't helping by not sending the support...
Being a single mom is difficult. I'd try befriending her & setting the stage for a relationship with her... Maybe if she sees you as an ally, rather than an enemy, it'd be easier for her to let them go...

Just a thought
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Old 07-04-2006, 06:10 AM
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brooks brooks is offline
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My husband has been fighting to see his kids for 8 yrs.Their mother would not allow ANY contact..even letters.The courts...well she moved and they"can't find her".
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Old 08-11-2006, 01:24 PM
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IrishEyes IrishEyes is offline
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I've got a few opinions about this topic myself. I'm a prisoner advocate, and a corrections consultant here in GA. I'm also the wife of an incarcerated man who's ex-wife is keeping his children away from him, and not allowing them to tlak to him, visit him, or get his letters.

The issue of behavior in the visitation rooms IS the responsibility of the CO's, but it's also the responsibility of the supervising parent. Keep your children away from known violators and ask to sit elsewhere if another family/ group is not behaving appropriately. Protect your child/ children.

Secondly, there are indeed Child Molesters in the visitation areas, and it's once again the responsibility of the supervising parent to dress their child modestly, and keep them under direct supervision. These two acts of protection will help keep the child there for the purpose intended. To spend time with their parent.

Thirdly, if you're financially able to help his ex-wife take care of HIS kids, then stop being selfish and start sending that money over again. Those kids are part of him, and if you love him, then what she does or doesn't do, has nothing to do with doing what's right, and that's supporting those children.

Good luck with this... I know it's frustrating.
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Old 10-03-2006, 11:45 AM
whatodo? whatodo? is offline
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By Not Sending Support For The Kids Is Hurting, Them Not Her.i Have Custody Of My Grandson. His Father Is The One In Prison. I Don't Like Him Going There, But I Also Have To Remember That Is His Father.oh,i Get No Support From Either Parent??
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Old 01-09-2007, 12:02 AM
Pam Brayfield Pam Brayfield is offline
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I have a son in the Federal system and his ex tried the same thing. I hired an attorney (or you can get one from Legal Aide); and I filed for THIRD PARTY CUSTODY and won. You have to file him as the Petitioner and you and his parents as third party petitioners and you can get Joint Legal Custody. During your custody times you can take the children to visit.
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