The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Custody & Visitation Rights – Incarcerated Parents

Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child.  These relevant factors are listed in 23 Pa. C.S. §5328(a).  All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights.  The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include:  (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit;  (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody.  By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order.  While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D.,  decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest.  The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court.  Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent.   If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.