Category: Family Law · Statute: F.S. 61.13 · Source: Florida Legislature
Understanding Child Custody During Incarceration in Florida
In Florida, when a parent is incarcerated, their legal and physical custody rights do not automatically vanish. Under Florida Statute Section 61.13, all custody decisions—referred to legally as "parental responsibility" and "timesharing"—must be guided by the best interests of the child. While incarceration itself is not automatic grounds to terminate parental rights, a parent's physical absence from the home constitutes a substantial change in circumstances. This allows the other parent, or a concerned relative, to petition the court for a temporary or permanent modification of the existing timesharing schedule to ensure the child has a stable living environment.
To prevent the state from placing the child in foster care during their confinement, an incarcerated parent can execute a power of attorney or designate a temporary custodian under Florida law. The court will evaluate the length of the sentence, the pre-existing bond between the parent and child, and the viability of the parent's proposed care plan. If the incarceration is brief, the court may simply suspend timesharing temporarily or order supervised communication, whereas a lengthy prison sentence often results in a more permanent transfer of physical custody to the non-incarcerated parent or an approved guardian.
Pretrial Release and Preserving Custody Rights
Securing pretrial release through a bail bond is often the single most critical factor in preserving a parent's custody rights in Florida. Remaining in jail while awaiting trial can prevent a parent from attending emergency custody hearings, fulfilling their daily caregiving duties, and maintaining the stable home environment that Florida family courts prioritize. By securing quick release on bail, an accused parent can actively participate in their family court proceedings, prevent the state or another party from obtaining an emergency default custody order, and maintain physical custody of their children while their criminal case is pending.