What Rights Do I Have as a Grandparent if My Grandchild’s Parent Is in Jail?

When a parent is suddenly arrested, jailed, or sent to prison, grandparents may be the people who step in to provide stability for the child. But taking care of your grandchild does not mean you have the legal authority to make decisions for them.

In California, a parent’s incarceration does not automatically transfer custody to a grandparent. What happens next depends on several factors, including whether the child’s other parent is available, who currently has legal custody, whether a family-law or juvenile case already exists, and how long the incarcerated parent may be unable to care for the child.

Amelia J. Mattis is an experienced San Diego grandparents’ rights attorney. If you are taking care of a grandchild whose parent is incarcerated, Mattis Law, A.P.C. can review your circumstances and help determine whether guardianship, temporary guardianship, visitation, or another legal option may be appropriate.

Seeking Guardianship for Your Grandchild

A parent’s arrest or incarceration does not automatically transfer legal custody of a child to a grandparent. If the other parent has custody rights and is available to care for the child, that parent’s rights will be an important consideration. If the other parent is absent, deceased, or unable to safely provide care, a grandparent should speak with a family lawyer attorney about your situation.

When a child’s parent is serving time in jail or prison, the child may need a guardian. A guardianship allows an adult who is not the child’s parent to become legally responsible for the child’s care when the parent is unable to provide that care.

What If the Other Parent Is Absent or Unsafe?

There may be serious concerns about placing the child with the other parent. For example, that parent may have abandoned the child, have a history of abuse or neglect, struggle with substance abuse, or otherwise be unable to provide appropriate care. In these situations, a judge will only order guardianship if remaining with a parent would be detrimental to the child and the guardianship would serve the child’s best interests.

Guardianship cases can become even more complicated when there are existing custody orders, allegations of abuse, Child Protective Services involvement, or a juvenile dependency proceeding. If Child Protective Services has removed the child from a parent’s home, guardianship generally falls within juvenile court rather than an ordinary probate guardianship proceeding.

What Is a Grandparent Guardianship?

Guardianship gives a grandparent custody of a child who is under 18. Once appointed, the guardian has authority over important matters. A guardian determines where the child goes to school, addresses medical and mental health needs, provides for the child’s care, and must comply with ongoing court requirements.

When an Incarcerated Parent Agrees to a Guardianship

A parent can agree that another adult should become the child’s guardian. California Courts explains that consent can be requested from a child’s parents and other relatives during the guardianship process. A parent can even be the petitioner, the person who asks the court to appoint another adult, such as a grandparent, as guardian.

Parental consent can make a case less contentious, but it does not eliminate the court process. Even when the parents agree, the judge still determines whether the guardianship should be ordered. When parents agree, a judge may establish the guardianship if it is necessary or appropriate to protect the child’s best interests.

What Happens If an Incarcerated Parent Objects to Guardianship?

If an incarcerated parent objects, the legal issues become more complicated, particularly if the parent expects to be released soon or proposes another person to care for the child. The parent’s incarceration alone does not eliminate their parental rights or guarantee that the court will appoint the grandparent as guardian.

The court will consider the circumstances surrounding the child’s care and whether establishing a guardianship is in the child’s best interests. If the parent objects, the grandparent may need to present evidence showing why the guardianship is necessary and appropriate. A San Diego grandparents’ rights attorney can help gather relevant evidence, address the parent’s objections, and present the grandparent’s position to the court.

What Happens When the Incarcerated Parent Is Released?

A parent’s release from jail or prison does not necessarily terminate an existing guardianship automatically. Guardianship generally continues until the child turns 18 or the court grants a petition to terminate it.

A parent who wants the child returned to their care can ask the court to terminate the guardianship. In deciding whether to do so, the judge will consider the child’s best interests and whether the circumstances that led to the guardianship have changed. Relevant factors may include whether the parent has stable housing and income, can provide a safe and suitable home, and has addressed the issues that originally made the guardianship necessary.

Talk to a San Diego Grandparents’ Rights Attorney

Amelia J. Mattis is an experienced San Diego family law attorney who handles grandparents’ rights, child custody, emergency custody, supervised visitation, and custody modifications. She has been named as a Top 10 Family Law Attorney in California by the American Institute of Family Law Attorneys, and Super Lawyers has recognized her as a Rising Star.

If you are caring for a grandchild because their parent is incarcerated and need to understand your legal rights, call Mattis Law, A.P.C. We can explain your rights and review your legal options.

Call (858) 328-4400 to discuss your situation during a free consultation with Amelia J. Mattis.

Protecting Your Rights, Serving Your Needs.

FAQs About Grandparents’ Rights When Your Grandchild’s Parent Is Incarcerated

Can I become my grandchild’s guardian while their parent is incarcerated?

Guardianship may be appropriate when a parent is incarcerated and unable to care for the child, particularly when the grandparent needs legal authority to make decisions about the child’s residence, education, medical treatment, and daily care. The court must approve the guardianship.

Does a grandparent automatically get custody rights when their grandchild’s parent goes to jail?

No. A parent’s incarceration does not automatically transfer custody to a grandparent. Whether a grandparent can obtain custody depends on factors such as existing custody orders, whether another parent is available and able to care for the child, and whether a guardianship or another court proceeding is appropriate.

Can I get temporary guardianship if my grandchild’s parent is suddenly jailed?

Temporary guardianship may be available when a child needs immediate assistance and there is a true emergency. In San Diego, a petition for general guardianship must also be filed, and the court can consider a request for temporary guardianship on an emergency when immediate appointment of a guardian is necessary.