by Meredith Wallis, LSPC Staff Attorney
The first step towards getting visitation while incarcerated is to gather information about your situation. Locate your child and your child’s caregiver, and find out if there is already a court order that has given someone authority over your child. There are three courts that may have issued a court order about your child: juvenile dependency court (Child Protective Services (CPS)), probate court (guardianship petitions), and family court (divorces, dissolutions of domestic partnerships, child support, and “paternity” cases). If CPS or guardianships are not involved, the case will be heard in family court.
Before getting a court order for visitation, you should try to reach an informal visiting agreement with your child’s caregiver. Write to the caregiver and ask that they bring your child for a visit or make other arrangements, such as them accepting regular phone calls, sending photos of your child, or keeping you informed of their school progress. Be sure to put the agreement in writing and keep a written record of how your arrangement works. If you are not able to arrange a satisfactory informal visiting agreement with the caregiver, you will probably need to file a court order for visitation.
If there is already a court order regarding custody and visitation of your child (in any of the three courts), then you will likely have to file documents in that same court case to modify the court order and give you visiting rights while you are incarcerated. It is important to make a strong case on paper and include helpful documents, because you are not guaranteed a hearing. If you have a probate court case, you can write a letter to the Family Law Facilitator, an office that helps people get practical information on filling out court forms, to find out what forms your county probate court requires. You could also ask the Law Library clerks at your institution for help. If there is an existing family law case, you can make a written motion for visitation in the lawsuit already on file.
If there is no court order in any court regarding custody and visitation of your child, you will need to file a new lawsuit and ask for visiting rights in family court. In each case, you will fill out the court forms, file them with the correct court, ask for a hearing date, serve copies of court papers on your child’s caregiver, prepare for a court hearing, attend a hearing, and obtain a court order. It is generally a good idea to attend court in person when seeking visitation with your child, if possible, or alternatively, you may appear in court by telephone or video conference. During your hearing, clearly state what you want, why it’s reasonable, and why it’s in your child’s best interest, and be sure to include any additional exhibits.
For more details on getting visitation while incarcerated, including how to fill out forms and prepare for court, please write us for the Legal Services for Prisoners with Children’s Manual on Child Custody and Visiting Rights for Incarcerated Parents
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