Grandparents Rights When Parent Is In Jail

Are you worried about your grandparents whose parents are in prison? Let’s find out what are the grandparents right when parent is in jail.

The arrest of a parent can be traumatic for the children. They have to face emotional, social, and economic challenges that can change their behavior or bring about a poor outcome in school. 

According to Pew Research Centre, one in twenty-eight children have at least one parent in prison. The problem was so widespread that in 2013 Sesame Street added a new character called Alex, whose father was in jail. 

The children who have incarcerated parents can relate with Alex in their life. The Sesame Street website also offered a kit, “Little Children Big Challenges” to help the problems faced by children whose parents are unfortunately in prison.

When a parent goes to prison, the options in front of children are bleak: either the other parent takes care of them as a single parent, or they go to a foster home. But there is another way out. 

Children have an emotional bond with their grandparents, and their grandparents are often smitten with these kids too. Apart from their own parents, the grandparents are the best people to provide care and support during this difficult time for such children. 

But there are many questions that grandparents might be unsure of: what are Grandparents’ rights when parent is in jail? Can they go for visitation, can they take custody? If so, what is their responsibility and what should they do when the parent comes back? This article will aim to demystify many such questions. 

But before we begin, let us first discuss the difference between an incarcerated mother vs. an incarcerated father, and why grandparents need to step in more in the case of the children’s mother going to prison.

grandfather and grandson bonding

Incarcerated Mother Versus Incarcerated Father

When their parents are in jail, children need a new home or new caregivers to support them physically, mentally, and socially. But the situation is very different when a mother goes to jail vs. when a father goes to jail.

Consider this: The Bureau of Justice says that around 10 percent of incarcerated mothers keep their children in foster care, whereas only 2 percent of male prisoners keep their children in foster care. This is because the children are cared for by the mother when the father goes to jail, but in many cases, the reverse is not true.

Almost half of the children of incarcerated mothers are taken care of by grandparents, but only one-tenth of the children are taken care of by grandparents when their father is in prison. 

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Children are more likely to suffer when their mother is in prison because a mother can provide almost three times more parenting care in a single-parent family. Women can also provide financial support to children just like men.

Another differentiating factor is prison tenure. The prison tenure on average is greater for men than women. Thus foster care is not a viable solution when men get incarcerated, but for women, it might still be ok.

Lastly, there are very few women prisons in the United States. So, most jailed mothers are away from their homes, making it hard for their children and other family members to meet. Thus, in every way, children are worse off when the mother is incarcerated.

Grandparents taking care of grandchildren

What Are My Rights When My Grandchild’s Parent Is In Jail?

#1. Physical Custody With Power Of Attorney

When you start taking care of your grandchild and are responsible for their daily wellbeing, it is known as physical custody. The situation usually occurs when either of the parents is in jail, and the remaining parent asks you to take care of the child. 

It is generally done in an informal agreement. However, the situation may arise when both the parents are in jail. It’s better to have a power of attorney granting you the authority to address the medical needs in an emergency when you cannot reach the remaining Parent by phone or other means.

The remaining Parent (who has not gone to jail) has to sign a notarized form and submit it to the court. A power of attorney lasts for a specified date or till the child is minor.

#2. Legal Custody

If you want more control over the grandchild, you need to go to court and ask for legal and physical custody. Both can be established by court order, but the remaining Parent can get custody by filing a petition in the court.

Remember, in most cases, the remaining Parent has visitation rights even if you get legal and physical custody of your grandchild.

Grandparents cooking

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Custodial Rights

You should play an important role when your grandchildren’s wellbeing and safety are at risk. In most states, taking custody of your grandchildren involves complexity.

There are specific rules and regulations for giving custody of grandchildren to grandparents. You can take care of your grandchildren when their parents are incarcerated for a certain period. 

But you have to prove that you care for your grandchildren much better than their parents or stepparents. If you cannot take care of your grandchildren properly, the court will give kinship care to any other family member.

The court first considers placing the child with the remaining Parent if one Parent is in jail. But if both the parents are in prison or the other parent is not fit to take care of the child, then the court temporarily gives custody to a designated relative.

The incarnated parents are asked to list relatives they think will provide care when they are in jail. The court gives importance to the child’s needs while evaluating the paper placement of your grandchildren. However, it is left in the hands of those individuals who do not know their grandchildren personally.

The custody of your grandchildren may be court-ordered when the Department of Family Protective Service completes a home assessment. You need to consider the below aspects if you want custody of your grandchild.

grandparents visits grandchildren
  • You should learn what is involved in a home study evaluation, including criminal background checks, work history, and family history. The primary purpose of the home study evaluation is to ensure that the child lives in such a home that can meet the needs and demands.
  • Try to familiarize yourself with as many procedures as possible to increase your grandchild’s chances of getting custody.
  • You need to gather all the necessary documentation to show the authority for getting custody of your grandparents. The documentation includes a birth certificate, social security card, and residence proof.
  • Evaluate your home correctly. It should have all the safety features that are required for your grandchild.
  • Try to make all the positive things in your home more prominent to provide a nurturing environment for your grandchild.
  • Try to do the detective work yourself about other individuals who are interested in taking custody of your grandchild.
  • Remember, your grandchild’s future is greatly affected when his parents are behind bars. So better, you can consult with an expert in Texas Family Law.
  • If only one Parent of your grandchild is behind bars, you have to prove that the remaining Parent is unfit to take care of the child.

#3. Visitation Rights

In some cases, the court does not give you custody because of various things. For instance, you are so old that you cannot take care of your grandchild or you don’t know how to drive. 

So you cannot take your grandchild to the appointed doctor, school, or play with friends. Even your location matters a lot. Your home should be near your grandchild’s school so that he will not have a problem going to school. Again, if you are not financially strong, the court gives other individuals custody.

Visitation rights are one of the best options if you don’t get legal custody of your grandchild. You can have visitation rights, for which you have to file a petition in court. Currently, there are no official court forms for this purpose. 

However, some courts have developed local forms and templates which you can use for getting visitation rights for your grandchild. You can ask the court’s self-help center near your location, or you can hire a private lawyer who will help you file the petition and get visitation rights for your grandchild.

grandparents teaching grandson

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How Can I Ask For Visitation In Court?

I am describing below a few steps which may help to have visitation rights of your grandchild.

#1. Find Out If Family Court Case Is Already Open

You must first determine if a family court case is involved between your grandchild and his parents. It is so; then, you need to file under that case.

But if there is no such case, you have to start a case by yourself. You can ask the self-help center or family law facilitator of the court to help file the visitation rights case.

#2. Fill The Forms Of The Court

You have to fill all the forms required to file a petition for visitation rights. Additionally, you have to open a case and fill out Form FL-300.

In form FL-300, you need to explain the type of visitation schedule you like to have with your grandchild and the reason for it.

Make sure you correctly answer all the judge’s questions, like your relationship with your grandchild. You need to express everything about your relationship with your grandchild, which the judge must know and give you visitation rights.

#3. Review The Forms

You can ask to review your paperwork in the self-help center or facilitation law facilitator. They will ensure that you have filed everything properly before moving ahead of your visitation right case. You can ask them about local forms that are necessary to fill in for filing a visitation rights case.

grandparents on the beach

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#4. Make Three Copies Of Your Forms

Make at least three photocopies of the original form that you will be submitting to the court. You will keep one with you, and the other two copies are for your grandchild’s parents.

#5. File Your Form

You need to submit the forms to the clerk of the court. The clerk will keep the original and return the photocopies to be stamped as filed.

Then you need to give the fees for filing. If you don’t have fees, then ask for a fee waiver.

#6. Get The Court Date Or Mediation Date

The clerk will give you a court date. You and the remaining Parent of your grandchild who has not gone to prison have to meet with a mediator before the court date or to mediation orientation. You can ask the clerk about this matter if you don’t know many things about it.

#7. Serve The Papers To Parents

After filing papers in court, the law requires you to notify the individual who has physical custody of your grandchild. The person can be stepparents or remaining Parents of your grandchild who has not gone to jail or another relative. 

The process is known as the service of process, which is a legal way to know someone about the court case.

The server should be at least 18 years old to serve the individual who has physical custody of your grandchild. He needs to serve each copy of the papers you have filed in the court.

having fun with grandparents

#8. File The Proof Of Service

Your server should fill out the proof of service (Form FL -330) or proof of service in my mail (Form FL -335)properly. If possible, take the help of a family law facilitator or self-help center to review them. It will assure you that you have filled it correctly.

#9. Go To Court Hearing Or Mediation

 There will be a court hearing in front of the judge once the server notifies the one who has physical custody of the grandchild. You may all get an order to go to Family Court service mediation to try a visitation agreement. If you cannot have an agreement, then the judge will decide on the child’s interest.

Once the judge decides, he will sign a court order. The clerk will prepare the order for the signature of the judge.

Problems Faced by Children of Incarcerated Parents

Children face a lot of stress and may even go into depression. They face financial hardship because of the loss of their parent’s income.

Many children don’t want to talk about their incarcerated parents because they think they will be bullied by their friends and make things worse if they talk about it.

Sometimes, parents who are in jail might have their rights as a parent rescinded because they have left their children in foster care beyond what the law allows them or have raised questions about child support.

According to The American Academy of Paediatrics, either Parent in jail can cause childhood trauma, leading to serious health problems, including mental disorders

Some children also witness their parents’ arrest and stressful events like trial and sentencing in court, which can cause PTSD and severe long-term mental disorders.

grandma playing with kids

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Should Grandparents Take the Burden Of Child Care? Pros and Cons

Raising grandchildren is an arduous task in old age.

You should consider the decision carefully when asked to take care of your grandchildren. An alternative, i.e., foster care, is where your grandchildren may stay when their Parents go to jail. However, only about half the children who are in foster care reunite with families.

So it’s best if you take the primary burden of grandchildren. However, other family members should support you in taking care of your grandchildren. Another good solution could be that a family member can become the primary caregiver of your grandchildren while you continue to play an active role.

Once you decide to go ahead with taking responsibility, one of the biggest challenges which you will face is social stigma. Sometimes incarceration does not become widely known in your community. 

But questions are asked by neighbors or other distant relatives when you suddenly start taking care of your grandchildren. At that time, you should be ready to answer those questions and be prepared for the attached stigma.

Should I Tell My Grandchildren That Their Parents Are Incarcerated?

Another emotional point to consider is whether you should let the children know about their parent’s incarceration. While it’s purely a personal decision, you have three options: 

  • The first option is to talk openly with your grandchildren and the outside world.
  • The second option is to talk to your grandchildren about their incarcerated parents but hide from the outside World.
  • The third option is to tell any story to grandchildren and the outside World. This is the worst possible thing to do, because when the truth comes out, the child might never forgive you for your deceit.

You need to weigh the pros and cons of each option before finalizing the decision. Here are a few things which you need to consider.

grandparents doing arts with grandkids

Option 1: Be frank

Your grandchildren will always be confused, stressed, and anxious when they don’t know about their parents’ whereabouts. They might not even have been present during the arrest of their parents. 

So, knowing where their parents are can help relieve their stress and anxiety; otherwise, they will feel that their parents left them and they no longer love them. 

Telling the truth will reassure your grandchildren that they are not abandoned. Children often blame themselves for the arrest of their parents. 

You need to make them understand that it’s not their fault that their parents are in jail. You can tell them that their parents are in jail just because of poor decisions.

Option 2: Tell them the truth, but hide it from others

You can lie to your grandparents about their Parents’ whereabouts, but it is bound to have a negative outcome. You may tell your grandparents that their Parent is out of town, attending college, in the military, or being admitted to hospital. 

But remember children are very smart. When they find that their Parent is in prison, they will no longer trust you and might want to go away from you. So, it’s best to tell the truth. 

You can convince them to hide their incarcerated parents from the outside world; otherwise, they may be teased or bullied by their friends in school. Even school teachers and counselors get confused handling and providing support to incarcerated children.

Telling The Truth: What To Share?

If you decide to tell the truth to your grandchildren, then explain to them why their parents are in prison. Your grandchildren need to understand that doing illegal things leads to negative consequences. 

But don’t try to disclose all the crimes done by their parents. It will be good if you just say that your father hurt somebody or your mother took drugs. Little children will be satisfied with simple answers, but if your grandchildren are older, they want specific answers from you.

Your grandchildren may ask you when their parents will return home from prison. Try to tell them the truth. Some prison sentences are for specific days or years. You need to reassure your grandchildren that their parents are safe in prison. Don’t discuss the hardships in jail. It will increase their stress.

grandparents celebrating birthday

Should I Encourage My Grandchildren To Visit Their Parents in Jail?

This question purely depends on the age of your grandchildren and their relationship with Parents before they are incarcerated. However, Most experts say that parents are part of their child’s life, and a relationship should be maintained between Parent and child even if the parent is in jail.

The procedure of visiting a jail along with your grandchild varies from one prison to another. Some prisons have special family days where you can take your grandchild to see their parents. But remember, special family days do not occur regularly.

Visiting a Parent depends on financial resources, prison policy, parent preference, and distance of prison to home. However, you will get all sorts of help from prison services while taking your grandchild to meet incarcerated Parents so that the visit will go smoothly. I will advise you first to make a solo visit and ensure all the procedures are easy enough to bring your grandchild to the prison to meet his Parent.

The parents of those kids may not want to meet them because they don’t want their children to see him behind bars. Your grandchildren may deny meeting their parents out of anger, but in reality, they might want to meet them.

Most children feel stressed dealing with complex things when their parents are in prison. When your grandchild visits his parents in jail, they may be upset, angry, or scared. 

grandparents biking

They may react unusually after seeing changes in their parents. The unfamiliar clothing with the difference in haircut and facial hair will be shocking for your grandchild. But all these things are normal. You can encourage your grandchildren to share their feelings.

Your grandchildren will always benefit from visiting their parents in prison. It will help reassure them that their parents are safe and still love them. However, your grandchildren may feel sad and cry when they see their parents behind bars. This is to be expected, and should not discourage you from letting the meeting happen.

You can encourage grandchildren to talk about their friends, teachers, and school. Your grandchildren may write stories or questions before the visit so that they don’t forget to discuss things with their parents while visiting in prison. Again, you should encourage parents to write letters to their children and try to be in touch with them.

Behavioral And Emotional Repercussions On Your Grandchild

Children behave weirdly after visiting their incarcerated parents. You should allow your grandchildren to express sadness and anger because it is a way to release stress. 

But if their behavior is extreme, then it’s best to consult a counselor or take help from others.

I have listed some typical symptoms of children whose parents are incarcerated.

  • Birth to Two years old: Lack of parent-child bonding
  • 2-6 years old – Separation anxiety and impaired social development
  • 7-10 years old- regression and damage of self-concept
  • 11-14 years old -Rebellion against the limit
  • 15-17 years old – premature disturbance with Parent
Grandpa and grandson

Is It Good For My Grandchildren To Maintain A Healthy Relationship With Their Incarcerated Parents?

Regular contact with their incarcerated parents will help your grandchildren academically, behaviorally, and emotionally. Your grandchildren may have wild ideas about their parents based on movies or TV shows, which will differ from reality. It is important that they should see their incarcerated parents so that they know that they are safe and will someday be able to meet them again.

Your grandchildren may feel sad and upset about having to live away from their parents. Meeting their parents once a week or at fixed intervals will make them feel good. They can express their feelings or ask questions and see that their parents are safe.

The Parent can also play a role in the life of the children. It is essential for the future, especially when your grandchildren reunite with their parents.

Your grandchildren may feel guilty after seeing and talking with their parents. They may think that they are the reason for their Parent’s incarceration, especially when their Parent has committed a crime because of money for supporting family members.

Your grandchildren may believe that if they had been better and more loving children, their parents would not have committed crimes.

Well, they need reassurance from you and their parents that the assumptions are not at all true. They need to understand that everyone loves them and they should not blame themselves for what has happened. It will help your grandchildren to heal emotionally.

grandparents having fun

Can I Take My Grandchildren when I Visit Jail?

Your own visits may not be ideal for your grandchildren. You can ask about the parent-child visitation program in prison. These programs have flexible visiting hours and play areas where both your grandchildren and their incarcerated parents can spend time together for a few hours. It helps in developing bonds between parents and their children.

Some jails also work with communities that organize summer host programs. These programs enable your grandchildren to stay with their incarcerated parents for a temporary period. It will be a short break from your caregiving duties towards your grandchild.

How Can I Best Meet The Needs And Demands Of My Grandchild?

Every child’s needs are different. Some children have minimal interaction with their incarcerated parents, while others are very close to the Parent and may be present at the time of their arrest.

Some children may come from a family where drug abuse creates a chaotic home life. Such children get relief by staying at their grandparents’ home. The situation differs from one child to the other. But every child needs love and support from parents and their grandparents.

Remember, your grandchild always wants to hear positive things about his incarcerated Parent. You should not say any negative things about the Parent because it will worsen the condition. 

Your grandchild should never feel that they need to defend his Parent. Try to have a safe environment at home where your grandchild can express anger, sadness, and confusion. 

Your grandchild will feel good when he has contact with his incarcerated Parent at a fixed interval. He also wants support from teachers, counselors, and other family members when his Parent is in jail.


Effect Of Adoption On Visitation Rights Of Grandparents

The effect of adoption on visitation rights varies from one State to another. In some states, your visitation rights terminate when a stepparent or another grandparent adopts your grandchild. 

On the other hand, your visitation rights terminate when stepparents or another grandparent adopts a grandchild in some states. They can even get terminated when the child is adopted by some other individual.

There are even some states in the United States where your visitation rights do not relate to your grandchild’s adoption.

Tips To Help You When The Parent Of Your Grandchild Is In Prison

  • You should try to become an anchor of support for your grandchild. It will help him develop skills to survive the trauma of their Parent who is behind bars.
  • Try to reassure your grandchild that he is not alone.
  • You can create a safe environment for the child to communicate with you properly.
  • You can involve other supportive adults in caring for your grandchild.
  • Help your grandchild in connecting with his incarcerated Parent. Keeping in contact will help your grandchild in relieving stress and provide stability.
  • You can look for social welfare programs to help your grandchild overcome the situation.
  • Your grandchild has to cope with big losses when his parents are in jail. He may lose home, school and friends. So you can reduce the burden of your grandchild by keeping the situation of the child as stable as possible.

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Wrap Up

Sometimes it may scare you to think that your grandchild will be taken back by their incarcerated parents when they are back from prison. It’s normal to be worried about the well-being of your grandchild. 

Breakfast with grandparents

However, the court decides where to place the child, i.e., with you, or return the child to parental care. Again, if your grandchild’s parent has gone to jail because of taking drugs, he must go through a period to show that he will not retake drugs.

In some prisons, incarcerated parents are given parental classes to improve parent-child relationships. You can encourage the Parent of your grandchild in his efforts. Simultaneously plan an active role in caring for your grandchild.

I hope this article has given you valuable information, and please don’t forget to share this article searching for this information. You are welcome to ask us more questions about grandparents’ rights for kids whose parents have been incarcerated, we will be happy to answer all your queries.