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Rights of Texas Inmates in Family Law Matters

Child Custody & Visitation

This article answers some common questions about how to help an incarcerated friend or family member with their family law issues.

Here, learn about the rights of Texas inmates in family law matters, including their ability to respond to legal cases, access to legal representation, and their rights to custody and visitation with their children while incarcerated.

My incarcerated friend or family member was sued in a family law case. What happens if they do not respond?

If they do not respond on time, the court may enter a default judgment against them. Default judgments mean that the court agrees to everything the petitioner asked for when they filed the case. It is very important that the incarcerated individual file something called an answer, which protects their right to have a say in their case. For more information, see: How to File an Answer in a Family Law Case

Is an incarcerated person entitled to a lawyer in their family law case?

Usually, individuals are not entitled to have a lawyer represent them in a family law case (like divorce, child support, and custody). This rule is the same for incarcerated individuals.

However, the incarcerated individual may be entitled to a lawyer if the family law case is a termination of parental rights cases filed by the state. Indigent (very low-income) parents—including certain alleged fathers—have a right to a lawyer in termination of parental rights proceedings filed by the state. This right extends to appeals as well

For more information, see The Right to a Lawyer in Family Law Cases.

Can I, a friend or family member of an incarcerated person, appear in court on behalf of the incarcerated individual?

No, unless the friend or family member is a lawyer representing the incarcerated person. The only person who can appear in court on behalf of an incarcerated individual is a lawyer.

It is always best to contact the legal aid organizations in the incarcerated person’s area or hire a private attorney to represent them in court.  You can use our Legal Help Finder tool to search for a lawyer referral service or free legal aid program in their area. 

The custodial parent is going to jail. Who "gets" the child? And how?

It depends. A transfer of custody due to a custodial parent’s incarceration is likely not automatic.

While rare, some court orders contain “right of first refusal” language. If the court order contains this language, the custodial parent’s right to leave the child or children with third parties is limited, and the custodial parent must give the noncustodial parent the chance to care for the child before allowing someone else to do so.

If you are a noncustodial parent whose court order does not have “right of first refusal” language and you want your child or children to live with you full time after the custodial parent goes to jail, you can file a modification case. Get modification instructions and forms here: I need to change a custody, visitation or support order.

Does the custodial parent have to take the child to see an incarcerated noncustodial parent?

The custodial parent is only required to follow the terms of the Possession and Access Order. If incarceration is not mentioned in the court order, a custodial parent is generally under no obligation to bring children for visits. The inability of the incarcerated individual to pick the children up will likely be viewed as forfeiting the right to their physical time with the children.

Incarcerated parents may still be able to write letters and telephone their child or children, but the custodial parent has the option to say no to any form of contact not specifically authorized in the court order. If the noncustodial parent is going to be incarcerated for an extended period of time, they may want to consider modifying their court order so that they have the right to visits and other contact with their children while in jail or prison. Get modification instructions and forms here: I need to change a custody, visitation or support order

Will the judge "bench warrant" the inmate to court so they can personally appear for their hearing?

According to the Texas Supreme Court, individuals cannot be denied access to the courts simply because they are inmates. However, an inmate does not have an absolute right to appear in person in every court proceeding. Because a prisoner has no absolute right to be present in a civil action, the prisoner requesting a bench warrant must justify the need for his presence.

The Texas Supreme Court has identified some factors to consider when deciding whether to grant an inmate’s request for a bench warrant. These factors include:

  • The cost and inconvenience of transporting the prisoner to the courtroom;
  • The security risk the prisoner presents to the court and public;
  • Whether the prisoner's claims are substantial;
  • Whether the matter's resolution can reasonably be delayed until the prisoner's release;
  • Whether the prisoner can and will offer testimony that cannot effectively be presented another means, such as by deposition or telephone;
  • Whether the prisoner's presence is important in judging his demeanor and credibility;
  • Whether the trial is to the court or a jury; and
  • The prisoner's probability of success on the merits.

In most cases, rather than requesting a bench warrant, it is a good idea for the inmate to request to appear by phone. Get information on participating by phone here: If I can’t get to court, can I participate by telephone?.

It is always best for the inmate to contact the legal aid organizations in their area or hire a private attorney to represent them in court.  You can use our Legal Help Finder tool to search for a lawyer referral service or free legal aid program in their area.

What happens if a noncustodial parent is incarcerated when a child support order is made?

If the noncustodial parent does not have any income because he or she is in jail or prison at the time the order is made (and will be there for at least 90 days), the law says the judge should not order child support. See Texas Family Code 154.068(b).

When the noncustodial parent gets out of jail or prison, either parent can file a modification case to ask that child support be ordered. Get modification instructions and forms here: I need to change a custody, visitation or support order

A child support order is already in place, and the noncustodial parent is going to jail or prison. Does he or she still have to pay child support?

Child support will not automatically end if a noncustodial parent goes to jail or prison.

The noncustodial parent must ask the court to stop or reduce their child support if they can’t pay it. If not, the amount they owe will continue to add up while they’re in prison, and they will owe all of that money once released. They can file a modification case to ask the judge to change their child support order. Get modification instructions and forms here: I need to change a custody, visitation or support order

The noncustodial parent may also be able to get help lowering their monthly child support payment by contacting the Office of the Attorney General Child Support Division and asking for a review and adjustment packet. 

156.401(c-1) Grounds for Modification of Child Support

Incarceration of a child support obligor in a local, state, or federal jail or prison for a period exceeding 180 days is a material and substantial change of circumstances for the purposes of this section.

Is an incarcerated person considered unemployed for child support purposes?

When a person is incarcerated, the court may not consider incarceration to be intentional unemployment or underemployment when child support is being established or modified. See Texas Family Code 154.066(c) (effective September 1, 2021).

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