If a Parent Goes to Jail, Can She Sign Over Custody to her Boyfriend Using Power of Attorney?

Written by James Hirby | Fact checked by The Law Dictionary staff |  

After a divorce, child custody issues often force ex-spouses to deal with one another on a semi-permanent basis. Once custody matters have been settled, these two individuals must periodically meet to discuss the terms of their agreement and exchange their children at changing points between their fixed custodial terms. For instance, one ex-spouse might meet the other on a Friday evening in order to pick up his or her daughter for a court-ordered weekend visitation period.

In most cases, one partner enjoys a more robust legal relationship with her or her children. This is known as "full custody." The partner who lacks full custody may be able to see his or her children at certain times in an arrangement known as "partial custody" or "visitation rights." These custodial agreements are typically reviewed by a family court judge on an annual basis. If a change in circumstances warrants a revision of the custodial agreement, the judge may transfer, extend or terminate custodial rights as he or she sees fit.

When an ex-spouse is convicted of a crime and incarcerated, such a change might be warranted. Most family court judges would agree that it would be improper for a small child to spend significant amounts of time with his or her parent in a prison setting.

However, the incarcerated parent can forestall a semi-permanent change in custody by signing his or her custody rights over to another individual using the "power of attorney" privileges inherent in his or her position as a guardian. Legally, a parent can sign over custody to any competent adult. Probable custody targets might include the custodian's long-term partner, ex-spouse, parents or siblings.

For such a custody transfer to become official, several things must occur. First, a legal document that outlines the custody transfer must be signed by the custodial parent as well as by the new custodian. This document must also be notarized by a certified "notary public." Finally, it must be authorized by a judge in order to become legally binding. Although this process is not complicated, it often requires the assistance of an attorney.

If such a custody transfer takes place between an ex-spouse and his or her new partner, the child's other biological parent may file a motion to review the event. If a judge finds that the grievances outlined in the motion have merit, he or she may nullify it and grant full custody to the other parent on a temporary basis.

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