Ask a Divorce Lawyer: Will I be able to get sole custody of my children if my ex goes to prison?

Question: My ex wife, who is the custodial parent, is facing a prison sentence of at least 12 months for felony grand theft after being arrested in front of our children last year. When she was arrested, her new husband took the kids to a different city and would not tell me where they were until it was my designated visitation time (the arrangement is 60/40). 

She has been in held in contempt several times for custodial interference, and now I’m afraid her husband will disappear with my kids again. Will I be able to get sole custody if she goes to jail? If so, will that only last until she is released? Will I have to take the kids to visit her in jail? How should I handle this?

Answer: Your current court order governs you custodial rights (when you see your children, whether you must take them to see their mother in jail, etc.). It does not matter what an attorney says “should” happen – e.g., that you have the right to your children when their mother is incarcerated – because the court will only enforce its orders, not what attorneys say. If the order is unclear, does not explain what will happen in the event one party is incarcerated or otherwise does not or will not apply to the situation, then you must ask the court to clarify or modify it. 

When clarifying an order, the court explains a term or how the order was intended, when issued, to apply to the situation.  When modifying an order, the court issues a new term, or terms, to govern the current situation according to the statutes and the case law that apply.

You might try one or some of the following options: 

Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children, wrongfully withheld, may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days.

Contempt: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction. 

Motion to Modify: Also consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and  thorough preparation. The long-term benefits could be worth the effort, however. You must have a lawyer’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a modification motion.

Document. Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your children can be reached in the event of a last-minute schedule change. Keep a journal to document your concerns – Was your ex-late for pick up or drop off? Were the children hungry? Were they dressed appropriately? How did the exchange go? When was  the last time you had visitation? Are you able to speak to them by phone? And so forth. Documenting is somewhat therapeutic, and it will also refresh your memory when discussing your case with a lawyer and if you need to testify in the future. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

Depending on the action you take, the court may make you the sole physical custodian, but the court may also award their mother parenting time conditioned on, say, good behavior in jail and require you to bring the children to visitation hours at the jail if that type of parenting time is in the children’s best interests. I handled a case, for example, in which a mother received parenting time at an in-patient substance abuse center so long as her physician certified that she made good progress and the family therapist thought the visits would be beneficial for the family. What the court will do in your case depends on all of the facts, which you have not disclosed and we cannot review in this online question-and-answer format. Therefore, I sincerely encourage you to retain an attorney to help you or, at the very least, consult an attorney for a thorough case review.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in your state, Idaho. You should not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a question to Cordell & Cordell, P.C.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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One comment on “Ask a Divorce Lawyer: Will I be able to get sole custody of my children if my ex goes to prison?

    My daughter is the non custodial parent and she is going to prison for a felony. Can I get her visitation with my grandson?

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