Can you get full custody of your children if your spouse is in prison for being a pedophile?

Answer 1

In some states, yes. In Michigan, for example, any parent who faces two or more years incarcerated, faces termination of parental rights by Family Court. Termination of rights is not automatic nor guaranteed, nor is it particularly easy.

Custody, which you ask about, and Termination of rights are legally different processes, so as for filing for custody, irrelevant by your own question: the other parent is currently incarcerated, the children are with you; both legally and physically you already have de facto sole custody. That isn't likely to change even after the other is released. Custody will remain with you as a matter of de facto reality. And, consider, you are securing the strategic high ground by doing nothing, or at minimum seeking a supervised visitation order.

Answer 2

It is assumed that by describing your spouse as "in prison for being a pedophile" you mean that your spouse was arrested and convicted of criminal sexual abuse of a child or children. Any adult who engages in sexual activity with a child is performing a criminal and immoral act which never can be considered normal or socially acceptable behavior. Whether or not they "suffer" from pedophilia makes no difference if they commit sexual abuse against a child. Pedophiles are arrested every day.

You can and you should seek sole legal custody of your child. Your situation is complicated and you need expert advice. Your main focus must be the safety of your children.

Custody refers to decision making authority. If the father is in jail, especially for sexual offenses against children, you can file for sole legal custody and you have a good chance of prevailing. Since courts seek to promote relationships with both parents you should include a provision in your petition that allows the father to seek supervised visitations upon his release if he obtains therapy that includes a relapse prevention program and if he demonstrates a firm commitment to follow through in changing his behavior and thought patterns. Supervised visitations provide a safe environment for the children to build or maintain a relationship with the father.

You should seek the advice of a family law attorney who specializes in custody issues in your jurisdiction who can review your situation and explain your rights and options. It is important that your case is presented to the court by a professional in the best way possible. You should act as soon as possible.

Answer 3

This is a Family Court issue, and Family Court issues can only be decided upon by a Family Court Judge. Attorneys who specialize in these sorts of issues are the best to consult.
However, on the face of your question, no. You cannot get full custody of your children if your spouse is in prison for being a pedophile, simply because no one goes to prison for "being a pedophile." They do go to prison for crimes they commit, and while criminal sexual assault is a crime, mental illness is not. Accuracy in these matters is very important.

To stress the importance of accuracy, pedophilia is a recognized psychiatric diagnosis, and no one goes to prison for suffering from a mental illness. Those who are not a licensed mental health professional, should avoid using terms they do not understand. Better to focus on what the actual conviction is than to toss around medical terms.

If you are asking rather if you might be able to get sole custody of your children because your spouse has gone to prison for a sexual offense, the best answer is maybe. This is not a slam dunk. The parents of children have rights, as do the children. In a nutshell, all parties have the right to an unencumbered relationship. That is of course as long as there is no immediate danger to the children. Now, provided the victim of your spouse's crime is not a sibling of the children, there is no compelling evidence that the children are or ever will be in danger, and to force custody away from a parent, you as the petitioning parent must prove that there is compelling evidence that the children are in imminent danger in the incarcerated parent's presence. The reality is that while that parent is incarcerated, they are not in danger from that parent.

Here's your problem, and it is a real Mexican standoff: While the parent is in prison, there is no immediate danger, and as long as he or she is able to maintain as normal as possible a relationship with the children, the state is not likely to attempt to sever that parent's rights, AND as the un-incarcerated parent, you must make all reasonable accommodations to notinterfere in the attempts of the children or their other parent to maintain a relationship. Should you interfere, you could be criminally charged and the children could potentially be removed from your custody. One term used for this is "Custodial Interference."

While the other parent is incarcerated, you already do have de facto sole custody of the children. The safety of your children from any potential threat by your spouse is a mute point while the incarceration lasts. If you wish to insure the safety of the children after your spouse's release, by all means petion the court for a Supervised Visitation Order.

That you may be angry with or feel betrayed by your spouse is understandable and completely normal. But, where your children are concerned, make rational choices. If as a result of anger you attempt to use them as a weapon against your spouse, it will likely blow up in your face in one way or another, and will unquestionably cause harm to your children.

From an educational perspective: the fact that your spouse has been convicted of a sexual offense, if in fact this is the case, means only that your spouse has been convicted of a sexual offense. This is in no way a guarantee that your spouse will ever offend against your children, or ever offend again for that matter. Odds are in fact that he will not. Sex offenders have the second lowest recidivism rate of all classes of criminal conviction. Those convicted of murder are least likely to reoffend. These are not unqualified statements; they are a matter of established fact (Department of Justice Bureau of Statistics). Fully 98% of murderers never leave prison, and only 2.7% who do ever reoffend. Concurrently, 98% of all sex offenders do leave prison, on average after 8.5 years, and only 3.5% ever reoffend. Of that 3.5%, 85% of those who reoffend are Exhibitionists (flashers, and this class of conviction reoffends nearly 100% of the time) and serial and the most violent rapists. BUT, fully 80% of all sex offenses are family and close relation situations (brothers, sisters, cousins, aunts, uncles, fathers, mothers, grandparents, close family friends, and neighbors).

So, you can hold onto the anger and hurt, if this in fact the case, and it will affect you and your children. Or, you can move past it, recognize that the world and the people in it are not perfect, broken in truth, and make the best of it by focusing on the love you have for your children, and what you at one time claimed to have for your spouse. You said "spouse" not "ex-spouse," so remember those vows, even if he forgot them.