The Court Cannot Take Legal Custody Away From Father Of Child Even If He Is In Prison If He Has Created A Proper Care Plan For His Children
California law is clear: a parent’s incarceration alone does not justify removing their child from their custody if that parent has taken responsible steps to ensure the child is safe and cared for. A recent Court of Appeal decision highlights this important principle and serves as a reminder that parents’ rights must be respected—even in difficult circumstances.
Our experienced criminal defense attorneys at Wallin & Klarich can guide you through the legal process. Call Wallin & Klarich today toll-free at (877) 466-5245 for your free consultation with one of our defense attorneys near you.
Father’s Care Plan for His Daughter
A.M. had lived with her father since she was a few months old because her mother struggled with substance abuse. Father, along with his extended family, provided a stable home. When Father was incarcerated shortly before A.M.’s seventh birthday, he acted responsibly by creating a proper care plan. He arranged for his sister, Martha, to care for A.M. and provided her with educational and medical documents as well as a notarized letter granting her temporary custody.
Despite these efforts, issues arose when Mother—who still had visitation—picked A.M. up for a visit and refused to return her. Reports surfaced that Mother appeared under the influence, failed to get A.M. to school, and kept her in unsanitary conditions with roaches and bedbugs. Child and Family Services stepped in and ultimately removed A.M. from both parents.
At the juvenile court hearing, Father’s efforts to protect and provide for A.M. were largely ignored. The court concluded that Father’s incarceration and criminal history placed A.M. at risk, and it removed her from his custody.
The Court of Appeal Reverses
On appeal, the Court of Appeal made it clear that the juvenile court’s decision was wrong. Under California law, a child may only be removed from a parent’s custody if there is clear and convincing evidence that remaining in that parent’s care would place the child in substantial danger.
The appellate court explained that incarceration, by itself, is not a valid reason to take custody away. In this case, Father had put a proper care plan in place by entrusting his sister with responsibility for A.M., and there was no evidence that his plan put A.M. at risk. The court also emphasized that Father could not be blamed for Mother’s refusal to return A.M. after visits, because the parents shared joint legal custody.
Why This Ruling Matters
This ruling reinforces a critical point: the law protects the rights of parents who take responsible steps to provide for their children, even when they cannot physically be there. Courts must look at the actual evidence of danger to a child—not simply the fact of incarceration—before stripping a parent of custody rights.
How Wallin & Klarich Criminal Defense Attorneys Can Help
If you are a parent facing incarceration, one of your biggest concerns is often what will happen to your children. Without skilled legal representation, the court may unfairly assume that prison automatically makes you unfit to retain custody. At Wallin & Klarich, our experienced criminal defense attorneys understand how to protect both your parental rights and your legal rights when the criminal justice system intersects with child custody.
Here’s how we can help:
- Developing a care plan: We can guide you in creating a strong and legally sound plan for your children’s care while you are unavailable.
- Advocating in court: We will argue against any attempt by the prosecution or child welfare agencies to use incarceration alone as a reason to remove your children.
- Filing and pursuing appeals: If the court issues an unjust ruling, our team has decades of experience handling appeals and fighting to reverse wrongful custody removals.
- Protecting your future: By defending you against criminal charges, we also work to minimize the collateral consequences that may impact your family and your custody rights.
Contact Wallin & Klarich Today
If you or a loved one are facing the loss of custody because of incarceration or a wrongful court ruling, you do not have to fight this battle alone. Our firm has been protecting parents in California for over 40 years. We know how to navigate both the criminal and family law systems to ensure you and your children are treated fairly. We will review your case and help you fight for the best possible outcome.
At Wallin & Klarich, we have offices all over Southern California: Irvine, Pasadena, Riverside, San Bernardino, San Diego, Torrance, Victorville, and Anaheim. Additionally, our law firm can handle many types of cases statewide.
Discover how our team can assist you. Contact us today, toll-free at (877) 466-5245 for a free consultation with a skilled defense attorney near you.
