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Q: Father in prison: rights retained and custody possibilities?
I have full custody of my two daughters, and their father is serving an 8-year sentence for child neglect, domestic violence, and assault and battery. The court order states that he has no visitation rights. I want to know what rights he still retains while in prison and if he can try to seek any type of custody or visitation.
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A:
Since your current order grants him no visitation rights, he would have to file a motion to modify the current order with the court to get any visitation rights granted to him. Under Oklahoma law, he would have the burden to prove a substantial change of condition AND that it would be in the best interest of the children for him to have visitation. You would get notice of the motion and be able to respond to it.
So long as his parental rights have not been terminated by a court, he retains the rights of a parent. Obviously, he would not be able to get physical custody while he is incarcerated but when he is released, he could petition the court for visitation rights, or even custody, of his children. If he brought such a motion before the court, although he would bear the burden of proof, you would need to respond to his motion and be prepared to defend against it. Given his criminal history, he would likely have to overcome some legal presumptions, but it is possible that he could be granted some rights.
A lot will depend on the age of the children, because in some instances the court could appoint a Guardian ad litem to advise the court on visitation issues. You should preserve any evidence that you have of his inappropriate behavior and follow all of the provisions of the existing court order.
If you have further questions, you could contact an experienced family law attorney for guidance on assembly of evidence to support your position.
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