According to FEAT for Children of Incarcerated Parents, about 150,000 adults are incarcerated every year in Canada, leaving behind 180,000 children. If you were recently released from jail or prison and want to obtain custody of your kids, here's what you need to do.
Determine If You Are Eligible
Before you invest the time, effort, and expense of pursuing custody of your child or children after you exit jail, you need to make sure the court will even consider your request. This is highly dependent on the type of crime you committed. Above all else, the court considers the best interests of the child when determining who to award custody and is more likely to reject your request if the crime you committed indicates you may harm the children, put the children at risk of being harmed, or be unfit to parent the kids.
For instance, if you were put in jail for violent crimes or crimes of moral turpitude such as murder or child pornography, your chances of being awarded custody are very low because the court may be afraid you would hurt or abuse the children. On the other hand, you may not experience as much difficulty if you were convicted of minor crimes such as check fraud or shoplifting since they don't usually involve physically or psychologically hurting other people.
Stabilize Your Life
As noted previously, the court is primarily interested in putting children in an environment that meets their needs, and parents are judged on whether they can provide the kids with a stable home, necessities such as food and clothing, and emotional support among other things.
You need to convince the court that you're capable of providing these things. This will generally involve finding reliable employment, a safe place to live, and possibly undergoing psychological evaluations to assess your mental stability. You'll also need to adhere to the terms of your release (if you're on parole or probation) and show that you're unlikely to repeat the crime that caused you to get arrested in the first place. For instance, if you were convicted of drug possession because you were addicted to drugs, then you would likely have to enter a treatment program and remain sober.
Apply to Family Court
You can apply for custody with the family court at any time. However, you may want to wait until you're established before asking the court for full or shared custody. It may be better to start with visitation rights to build (or rebuild) a good relationship with the kids and demonstrate your ability and fitness to parent to the court.
If you're concerned about your children's well-being or looking to have more say in your child's upbringing, then consider petitioning for legal custody. This type of custody makes it so the co-parent must consult you about major decisions in your kids' lives such as where they go to school and medical issues.
Getting any type of custody, legal or physical, of children after getting out of jail can be challenging. Connect with a family lawyer who can assist you with making a compelling case in court that may help you obtain the outcome you want. For more information, contact Wilson Christen LLP or a similar firm.